Pubdate: Tue, 30 Nov 2004
Source: Washington Post (DC)
Copyright: 2004 The Washington Post Company
Author: Charles Lane, Washington Post Staff Writer
Bookmark: (Cannabis - Medicinal)


Medical Use Seen As Subject To Regulations

Advocates of medical marijuana received a mostly skeptical reception from 
the Supreme Court yesterday as the court heard oral arguments in a case 
that will decide whether the federal government can still ban possession of 
the drug in states that have cut or eliminated sanctions for using it to 
treat symptoms of illness.

At issue is the small, homegrown quantity of marijuana used by two Northern 
California women at the recommendation of their doctors, as permitted by 
California's Compassionate Use Act, which was adopted by an overwhelming 
majority of voters in 1996.

But a majority of the justices made comments suggesting they thought that 
even small amounts of ostensibly medical marijuana, obtained for free, were 
part of a national market for licit and illicit drugs -- and thus subject 
to Congress's constitutional power over trade among the states.

"Medicine by regulation is better than medicine by referendum," Justice 
Stephen G. Breyer remarked at one point. "I have to take this case on the 
assumption that there is no such thing as medical marijuana that is special 
and beneficial."

"Cannabis does have a substantial medical effect," replied Randy E. 
Barnett, a law professor representing the two women, Angel McClary Raich 
and Diane Monson. He conceded that it has "ancillary effects" that may 
cause harm, but said that "when people are suffering and dying, they are 
willing to run risks."

At that point, Justice Anthony M. Kennedy intervened, eliciting from 
Barnett the concession that California's law does not apply only to 
life-threatening illnesses such as AIDS or cancer.

Monson, for example, was prescribed marijuana for lower back pain; Raich 
received hers for a variety of chronic conditions.

Monson's home was raided and her marijuana plants seized by federal agents 
in 2002; Raich says she receives free pot from caregivers and joined 
Monson's suit because of her fear that her marijuana could be seized. 
Raich's suppliers are also in the case, as John Does One and Two.

Monson and Raich say the federal government's crackdown on medical 
marijuana in California, which began under President Bill Clinton and 
continues under the Bush administration, is unconstitutional as it applies 
to them because their cultivation and use of the substance is a noneconomic 
activity that takes place in one state.

Their argument relies heavily on two Supreme Court cases within the past 10 
years, in which the court limited Congress's power to make laws in the name 
of regulating interstate commerce.

The court ruled in 1995 that Congress could not criminalize the possession 
of guns near schools; in 2000, the court said Congress lacked the authority 
to give rape victims the right to sue their attackers in federal court. The 
court said the link between school gun violence or rape -- both of which 
are already illegal under state law -- and the national economy was too 

The strongest voice on the court in favor of Monson and Raich belonged to 
Justice Sandra Day O'Connor, who challenged acting Solicitor General Paul 
D. Clement to show how the use of federal power in this case was better 
justified than it was in the 1995 and 2000 cases.

"Did not the court say Congress can't use a long 'but-for' chain of 
causation? Did the court not make that statement, and does it not cut 
against what you are saying?" O'Connor asked.

Clement answered that federal enforcement of federal marijuana laws is an 
essential part of a larger regulatory scheme involving drugs and health 
care, and as such constitutional under the court's precedent.

The case is Ashcroft v. Raich, No. 03-1454. A decision is expected by July.
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