Pubdate: Tue, 07 Jun 2005
Source: Philadelphia Inquirer, The (PA)
Copyright: 2005 Philadelphia Newspapers Inc
Contact:  http://www.philly.com/mld/inquirer/
Details: http://www.mapinc.org/media/340
Author: Stephen Henderson, Inquirer Washington Bureau
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/topics/Raich (Angel Raich)

COURT LOSS FOR MEDICAL MARIJUANA

Users in the 11 States That Allow It Can Still Face Federal Prosecution,
Justices Ruled by 6-3, While Not Invalidating Laws in Those States.

WASHINGTON - The Supreme Court, siding with federal authority over
states' rights and terminally ill patients, said yesterday that the
government can prosecute sick people who smoke marijuana as a
painkiller - even in states where such use is legal.

The 6-3 ruling, which crossed the court's usual ideological lines,
does not invalidate laws in the 11 states that have approved medical
marijuana, but it does deflate their power to protect users and
doctors who prescribe the drug.

Regulation of illicit drugs is a matter of interstate commerce,
reserved exclusively to the federal government by the Constitution,
the court said. That includes regulating local activities - such as
the growing and consumption of medical marijuana - that could affect
interstate markets. So the federal Controlled Substance Act of 1970,
which classifies marijuana as a drug unacceptable for any use, holds
sway over any state provisions that say otherwise, the court said.

The decision in Gonzales v. Raich means patients such as Diane Monson
and Angel Raich, the California women who challenged the federal law,
risk federal prosecution if they do not stop growing and smoking marijuana.

Raich said yesterday that her own decision was a no-brainer.

"If I stop using it, I would die," said Raich, who admitted she was
smoking even as she talked with reporters by phone about the ruling.

Raich has an inoperable brain tumor; scoliosis, or curvature of the
spine; and several other permanent disabilities, and says other
medications have been ineffective. "I do not have a choice but to
continue using cannabis," she said.

Raich and her attorneys said their next move would be to Congress,
where they hope to persuade lawmakers to restrain the Justice
Department from spending money to prosecute medical-marijuana users in
states that permit it.

They will also go back to court to fully litigate a claim, undecided
by the high court, that they have a constitutional right to disregard
the federal drug law out of medical necessity.

The Justice Department did not say yesterday how aggressive it would
be in pursuing prosecutions against medical-marijuana users.

John Walters, director of national drug-control policy, defended the
federal ban, saying: "Science and research have not determined that
smoking marijuana is safe or effective."

In his opinion for the court, Justice John Paul Stevens sympathized
with Raich and others who use marijuana, saying the case was
complicated by their claims that they would "suffer irreparable harm"
if the court ruled against them.

But the question the court faced, Stevens said, was whether Congress'
power to regulate interstate markets could reach into areas such as
medicinal marijuana, in which the drug is produced and consumed locally.

"Well-settled law controls our answer," Stevens wrote. The Controlled
Substances Act "is a valid exercise of federal power, even as applied
to the troubling facts of this case." Stevens' opinion was joined by
Justices Anthony M. Kennedy, Antonin Scalia, David H. Souter, Ruth
Bader Ginsburg, and Stephen G. Breyer.

In a strongly worded dissent, Justice Clarence Thomas said the court
had opened the door to nearly unlimited government regulation.

Monson and Raich "use marijuana that has never been bought or sold,
that has never crossed state lines and that has had no demonstrable
effect on the national market for marijuana," Thomas wrote. "If
Commerce can regulate this... then it can regulate virtually anything."

Chief Justice William H. Rehnquist also dissented, as did Justice
Sandra Day O'Connor, who wrote separately.

Key to the court's decision was a determination that there was no such
thing as personally grown or consumed marijuana that does not affect
the broader drug market. Monson and Raich had maintained that their
drugs existed in a parallel market that had no effect on the illicit
drug trade, since they were not buying or selling marijuana.

Stevens found the effect of their activity on interstate markets
"readily apparent," given that the California law only loosely
restricts the amount of marijuana that patients may grow.

"The likelihood that all such production... will precisely match the
patients' medical needs... seems remote," Stevens said, "whereas the
danger that excesses will satisfy some of the admittedly enormous
demand for recreational use seems obvious."

O'Connor took issue with that logic. "The court's definition of
economic activity... threatens to sweep all of productive human
activity into federal regulatory reach," she wrote. "To draw the line
wherever private activity affects the demand for market goods is to
draw no line at all. We have already rejected the result that would
follow - a federal police power."

The case has its roots in a 2002 federal raid on Monson's Oroville
farm. She was growing marijuana and smoking it to ease her back pain.

The raid was tied to a federal crackdown in the fight against terror;
President Bush has said the illegal drug trade helps finance terrorists.

But the raid also brought federal power into conflict with a 1996
California law that permits doctors to prescribe marijuana to
patients, who are allowed to grow it. The raid inspired Monson and
Raich to sue, arguing that the federal government could not enforce
its ban on marijuana in a state that had legalized its medicinal use.

Ten other states - Alaska, Arizona, Colorado, Hawaii, Maine, Montana,
Nevada, Oregon, Vermont and Washington - have similar laws.

California Attorney General Bill Lockyer said yesterday in regard to
his state's law: "People shouldn't panic... . There aren't going to be
many changes." 
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MAP posted-by: Richard Lake