Source: San Francisco Chronicle (CA)
Author: Bob Egelko and Patrick Hoge, Chronicle Staff Writers
Published: Tuesday, June 29, 2004 - Page B - 1
Copyright: 2004 San Francisco Chronicle
Contact: [email protected]
The U.S. Supreme Court cast a cloud on the medical marijuana movement's biggest legal victory Monday when the justices agreed to hear the Bush administration's appeal of a ruling that protects marijuana patients in California from federal prosecution.
The administration is challenging a decision in December by the Ninth U.S. Circuit Court of Appeals in San Francisco that barred federal drug agents from interfering with the growing and use of marijuana by two women, Angel Raich of Oakland and Diane Monson of Oroville (Butte County).
The court will hear the case in the term that starts in October, with a ruling due by the end of June 2005.
Medical marijuana advocates had hoped the case would end without Supreme Court review. The case may represent their last chance to fend off the federal government's attack on medical marijuana in California, which followed passage of Proposition 215, the 1996 initiative that legalized medical use of the drug under state law.
The court that will decide the case has consistently rejected challenges to federal drug laws. Three years ago, the justices overturned another Ninth Circuit decision that would have allowed cannabis clubs to distribute marijuana, without risking federal prosecution, to patients who could show that they needed it to prevent serious harm or death and that legal drugs were ineffective for them.
Attorneys for medical marijuana advocates then pinned their hopes on the most sympathetic plaintiffs available -- individual, seriously ill patients -- and on a legal argument that the Supreme Court has favored in other contexts, the limits of Congress' power to regulate interstate commerce.
Raich, 38, who uses marijuana with her doctor's approval to treat pain, nausea and seizures associated with a brain tumor and a wasting syndrome, made a fervent plea at a news conference Monday.
"Medical cannabis has saved my life,'' she said, but "this case is not just about medical cannabis. It's about whether or not the federal government in this country has the right to decide who may live and who may die.''
Raich, disabled since 1995, takes marijuana about every two waking hours. Her primary physician, Dr. Frank Lucido of Berkeley, told reporters that Raich needs marijuana to fight off her physical deterioration.
Monson takes marijuana to combat severe back pain and muscle spasms. She also has a doctor's recommendation for marijuana, as required by Prop. 215.
Both women obtained their marijuana locally and without charge -- Raich from two caregivers, Monson from her own garden, at least until federal agents raided her property in August 2002 and seized her six plants.
Those raids were part of the Bush administration's escalation of the federal campaign against California's Prop. 215. The Clinton administration had also fought Prop. 215, reacting to the 1996 measure by moving to shut down clubs that had sprung up around the state to supply marijuana to patients, and by threatening to punish doctors who recommended the drug.
Monson and Raich now have court orders allowing them to continue using marijuana as a result of December's appeals court ruling.
The appeals panel ruled 2-1 that the women were not engaged in interstate commerce, or any kind of commercial activity, and that prosecuting them under federal drug laws would therefore be unconstitutional in a state that has legalized the medical use of marijuana.
"The medical marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce," the court majority said.
The ruling has already had an impact. A federal judge in San Jose has used it to prohibit further federal enforcement action against a Santa Cruz medical marijuana collective that was raided by federal agents in 2002. Earlier this month, the appeals court ordered judges to reconsider two other cases in light of the Raich decision, one of them an attempt by cannabis clubs in Oakland, Ukiah and Fairfax to resume supplying marijuana to patients.
But the Bush administration's Justice Department argues that the Ninth Circuit has once again failed to appreciate the power of Congress to ban illegal drugs.
The appellate ruling "seriously undermines Congress' comprehensive scheme for the regulation of dangerous drugs,'' government lawyers said in papers filed with the Supreme Court.
The Justice Department cited congressional findings that all illicit drug traffic affects interstate commerce because it increases the demand for drugs, and because drugs sold across state lines can't normally be traced to their origin.
Under the appeals court ruling, government lawyers said, those who want to distribute any illegal drug for free within a state "could function essentially as unregulated and unsupervised drug manufacturers and pharmacies.'' And, they added, by relying on California's legalization of marijuana for "purported medical purposes,'' the appeals court ignored the fact that federal law considers marijuana to be a dangerous drug with no legitimate use.
Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington state also have medical marijuana laws, though federal enforcement efforts have been largely concentrated on California. All those states except Colorado and Maine are in the Ninth Circuit and thus were covered by December's ruling.
Medical marijuana advocates put the best face possible on the Supreme Court's decision to review the case.
"The Supreme Court has a chance to protect the right of patients everywhere who need medical cannabis to treat their afflictions,'' said Steph Sherer, executive director of Americans for Safe Access.
The case is Ashcroft vs. Raich, 03-1454.
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