Pubdate: Tue, 07 Jun 2005
Source: Oakland Tribune, The (CA)
Copyright: 2005 MediaNews Group, Inc. and ANG Newspapers
Contact:  http://www.oaklandtribune.com/
Details: http://www.mapinc.org/media/314
Author: Josh Richman, Staff Writer, Oakland Tribune
Note: Staff writer Michelle Maitre contributed to this report.
Cited: Gonzales v. Raich http://www.angeljustice.org
Cited: Drug Policy Alliance http://www.drugpolicy.org
Cited: Marijuana Policy Project http://www.mpp.org
Cited: California NORML http://www.canorml.org
Cited: Oakland Cannabis Buyers Cooperative http://www.rxcbc.org/
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/topics/Raich (Angel Raich)

HIGH COURT SAYS 'NO' TO POT

Ruling in Oaklander's Case Lets Feds Prosecute Medical Marijuana Users; 
Advocates Turn to House

Medical marijuana patients and providers can be arrested and
prosecuted under federal law, the U.S. Supreme Court ruled Monday,
effectively ending an Oakland woman's legal odyssey and moving the
issue from the courts to Congress.

The 6-3 decision essentially concluded that even marijuana grown in
back yards for personal medical use can affect or contribute to the
illegal interstate market for marijuana and therefore is within
Congress' constitutional reach. The dissenters - some of the court's
most conservative voices - said the majority is letting the federal
government overstep its proper bounds.

Medical marijuana advocates stressed Monday that the ruling doesn't
void California's or any other state's law; it merely reasserts
federal authority to enforce federal law in those states, which was
the status quo until late 2003.

"All that happened in the past year was people got their hopes up,"
said Ethan Nadelmann, executive director of the Drug Policy Alliance
in New York. "I don't see us being pushed back any farther than that."

Angel McClary Raich of Oakland, one of two patients who brought this
case, said Monday she had no regrets.

"We had nothing to lose and everything to gain," she said. "And even
though we lost, it does not mean the battle is over. I still have some
breath in my body, and I am hoping to go to Washington on June 14 to
testify to Congress."

The House next week is scheduled to consider a Justice Department
spending bill amendment barring federal authorities from using public
money to arrest and prosecute patients and providers in those states.
The bipartisan measure fell about 70 votes short of passage last year;
advocates hope Monday's ruling mightconvince some fence-sitters that
the time has come.

Raich tearfully pleaded Monday for the public to urge Congress to
change federal law.

"Please speak out with me," she said. "We patients need you, we should
not have to suffer."

Raich says without the drug's appetite boost, her wasting syndrome
causes rapid, dangerous weight loss. She also suffers from maladies
including an inoperable brain tumor and nonepileptic seizures, and on
Monday she announced she'd been diagnosed in April with precervical
cancer for which she'll need a hysterectomy.

Halting her marijuana use would be fatal, she said, and she no longer
considers moving to a country where her medicine is legal. Her
19-year-old son departs for U.S. Army training next week, she said: "I
have to stay here and fight for my life for him."

Diane Monson of Oroville, the lawsuit's other named plaintiff, uses
marijuana to control chronic back pain. Local authorities in August
2002 agreed her six marijuana plants were within county guidelines
under state law, yet federal agents seized the plants without charging
her with a crime.

Raich and Monson plus two unnamed providers sued in October 2002, but
this case's seeds actually were sown in the Supreme Court's May 2001
decision on the Oakland Cannabis Buyers Cooperative's case.

The court in that case ruled there's no collective medical necessity
exception to the federal ban, which defines marijuana as having no
valid medical use. But the court also stressed it wasn't ruling on
constitutional questions underlying the medical marijuana debate, so
Raich, Monson and their lawyers tailor-made a case raising exactly
those issues.

A federal judge in San Francisco rejected their arguments in March
2003, but the 9th U.S. Circuit Court of Appeals reversed that ruling
nine months later. The panel found a strong likelihood they could
prevail at trial on their claim that the Constitution's Commerce
Clause lets Congress regulate only interstate commerce, and that
Californians' medical marijuana use neither crosses state lines nor
involves money changing hands.

The 9th Circuit granted a preliminary injunction halting federal raids
upon medical marijuana patients and providers. The federal government
appealed, and the U.S. Supreme Court heard oral arguments Nov. 29.

In an opinion written by Justice John Paul Stevens, the majority
agreed with the government's argument that it can regulate local
activity which is an essential part of a larger regulation of economic 
activity.

"The exemption for cultivation by patients and caregivers can only
increase the supply of marijuana in the California market," Stevens
wrote, adding that the national and international drug trade's
vitality "suggests that no small number of unscrupulous people will
make use of the California exemptions to serve their commercial ends
whenever it is feasible to do so."

Justice Sandra Day O'Connor, in a dissent joined by Chief Justice
William Rehnquist and Justice Clarence Thomas, contended there is no
evidence that homegrown medical marijuana makes a substantial or even
noticeable impact on the national illicit drug market or undercuts
federal drug laws.

"This overreaching stifles an expressed choice by some states,
concerned for the lives and liberties of their people, to regulate
medical marijuana differently," she wrote.

"If I were a California citizen, I would not have voted for the
medical marijuana ballot initiative; if I were a California legislator
I would not have supported the Compassionate Use Act. But whatever the
wisdom of California's experiment with medical marijuana, the
federalism principles that have driven our Commerce Clause cases
require that room for experiment be protected in this case."

Stevens acknowledged the case "is made difficult by respondents'
strong arguments that they will suffer irreparable harm because,
despite a congressional finding to the contrary, marijuana does have
valid therapeutic purposes." But that's not for the court to decide
here, he added. "The CSA (Controlled Substances Act) is a valid
exercise of federal power, even as applied to the troubling facts of
this case."

Raich and Monson can mount other legal arguments such as due process
or individual medical necessity, he wrote. "But perhaps even more
important than these legal avenues is the democratic process in which
the voices of voters allied with these respondents may one day be
heard in the halls of Congress."

Advocates took that as an open invitation.

"From our perspective, while the result of the case is disappointing,
the timing is perfect," said Steve Fox, the Washington, D.C.-based
Marijuana Policy Project's government relations director.

The ruling should "generate a lot of attention" for next week's
consideration of the Justice Department spending bill amendment.
Lawmakers on both sides of the aisle have hesitated to back it for
fear of being labeled "soft on drugs," he acknowledged, but about 150
voted for it last time "and all of them were re-elected - not once
were any of them criticized for the vote, and we hope that message
gets out."

Dale Gieringer, California coordinator for the National Organization
for the Reform of Marijuana Laws, and Jeff Jones, the Oakland Cannabis
Buyers Cooperative's executive director, acknowledged Monday's ruling
will give rhetorical ammunition to local authorities seeking to clamp
down on medical marijuana, even though California's law remains valid.

But they also noted that Gov. Arnold Schwarzenegger, who has spoken in
favor of medical marijuana, took office since California's last
federal raids. The Bush administration might not wish to cross such a
popular member of its own party with new raids unless specifically
invited by state or local authorities, Gieringer said.

Alameda County supervisors today are mulling an ordinance to limit
medical marijuana dispensaries in unincorporated areas to no more than
five, and to regulate hours, fees and other issues; it also directs
county officials to research opening a dispensary at the county's
Fairmont Hospital.
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MAP posted-by: Richard Lake