Pubdate: Tue, 30 Nov 2004
Source: San Jose Mercury News (CA)
Page: 1 - Front Page
Copyright: 2004 San Jose Mercury News
Author: Jim Puzzanghera, Mercury News Washington Bureau


Justices Will Rule on Law for California Pot Use

WASHINGTON - Several U.S. Supreme Court justices reacted skeptically
Monday to the arguments of two chronically ill California women
seeking immunity from federal prosecution for smoking marijuana
because state voters approved its medicinal use.

Angel Raich, 39, of Oakland, and Diane Monson, 47, of Butte County,
argue that U.S. officials are violating the Constitution by trying to
stop them from using marijuana prescribed by doctors for their severe
chronic pain.

Their attorney, Randy Barnett, told the justices that the marijuana
the women smoke is homegrown only for their use and therefore is not
an interstate commodity subject to federal regulation.

Some conservative justices believe strongly in protecting the rights
of states from federal encroachment. But they and other justices
appeared critical of Barnett's arguments that medicinal marijuana
users should be immune from federal law that bans the drug as a
harmful and addictive controlled substance.

Such exemptions could open the door to abuse of medicinal marijuana
laws by recreational users, Justice Stephen Breyer said.

Black Market

Justice Antonin Scalia said it was logical that some of the estimated
100,000 Californians who use medicinal marijuana would purchase it on
the black market, making it an economic commodity the federal
government can constitutionally regulate. And Breyer said people who
believe marijuana has medicinal value should first take their case to
the federal Food and Drug Administration.

"Medicine by regulation is better than medicine by referendum," he

A ruling is expected before the court's term ends in June.

California voters approved the nation's first medicinal marijuana law,
Proposition 215, in 1996. But the case has ramifications beyond
California. Ten other states have laws allowing marijuana use for
medicinal purposes, including Montana, where voters last month
approved a ballot initiative.

Marijuana is used to alleviate chronic pain, such as from glaucoma,
and to suppress nausea and induce the appetite of people undergoing
chemotherapy or battling AIDS.

A ruling against the two California women would not invalidate
California's medical marijuana laws or statutes in other states,
mostly in the West. But it could discourage other states from passing
similar ones and would allow the Bush administration to continue its
aggressive approach of raiding and arresting some medical marijuana

Possible Precedent

Such a ruling also could set a precedent for wider congressional power
under the U.S. Constitution's "commerce clause," which the court has
been trying to restrict in recent years.

Raich, a frail, 98-pound mother of two who suffers from an inoperable
brain tumor and a host of other ailments, said the marijuana
prescribed by her Berkeley physician is the only medicine that has
worked. It has allowed her to live a somewhat normal life after
needing a wheelchair for four years.

Without it, Raich said, she would no longer be able to keep food down
and would quickly waste away.

"If I was ever to get raided and the federal government took my
medicine away from me, I would die in a very rapid, quick way. Without
cannabis every two hours, I become debilitated," she said at a
Washington news conference after the court session.

Raich said she may be forced to move to a country with more relaxed
laws if she loses the case, because she fears she will be targeted by
federal agents because of her high-profile role as a medicinal
marijuana user.

But a legal victory for Raich could be a narrow one that would leave
unresolved the broader question of the legality of medicinal marijuana.

The Supreme Court has sent mixed signals on the controversial issue in
recent years.

Cannabis Club

In 2001, the court ruled unanimously against an Oakland cannabis club
that claimed a "medical necessity" exception to federal drug laws.
But last year, the court rejected a Bush administration challenge to a
ruling by the Ninth Circuit Court of Appeals in San Francisco, which
bars the federal government from punishing doctors who recommend
marijuana to their patients.

Raich and Monson sued to prevent potential federal action against them
after drug agents raided Monson's garden in August 2002, seizing the
six marijuana plants she was allowed to grow under California's law.
Monson smokes marijuana because she said it's the only medication that
relieves her extreme back spasms.

"I do not smoke in public at all," Monson said outside the Supreme
Court building. "I handle my medical problems privately, normally."
She brought her marijuana with her and smoked some before attending
the oral arguments.

The two women won an injunction against federal raids on them in the
Ninth Circuit Court of Appeals, which the Bush administration has challenged.

Paul Clement, who argued the case for the federal government as the
acting solicitor general, said allowing "any little island of lawful
possession" of marijuana would undermine the intent of Congress in
1970 to ban the drug's use.

Justice Sandra Day O'Connor questioned why the federal government
would need to get involved in regulation of a commodity that was not
intended to be sold across state lines. But Clement responded that it
was "a bit optimistic" to assume none of the marijuana allowed to be
grown in California for medicinal use would not be diverted into the

Such an increase in marijuana available for purchase would lower the
price of the drug and undermine federal policy designed to make the
drug more difficult to purchase, Clement said.

Justice David Souter asked Clement if there was a value in drawing a
narrowly defined distinction in the law between medicinal and
recreational use of marijuana. But Clement said officials in
California and elsewhere would find that line hard to police.

Harmful Effects

Clement also argued that Congress has the right to completely ban
certain substances, and that marijuana has additional harmful effects
from being smoked, making it physically unhealthy. He noted that the
active ingredient in marijuana, THC, has been isolated and is legally
available in pill form sold as Marinol.

Raich and Monson said Marinol has not worked for them.
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