Pubdate: Wed, 08 Jun 2005
Source: Alameda Times-Star, The (CA)
Copyright: 2005 MediaNews Group, Inc. and ANG Newspapers
Contact: http://www.timesstar.com/Stories/0,1413,125%257E1524%257E,00.html
Website: http://www.timesstar.com/
Details: http://www.mapinc.org/media/731
Author: Josh Richman, Staff Writer

POT MEASURE A TOUGH SELL IN CONGRESS

2 Area Reps Among Foes Of Bill To Keep Feds Off Medical Users' Backs

Two greater Bay Area members of Congress seem likely to oppose a
legislative amendment that medical marijuana advocates call their next
best hope after Monday's U.S. Supreme Court defeat.

The amendment by Rep. Maurice Hinchey,D-N.Y., and Rep. Dana
Rohrabacher, R-Huntington Beach, would forbid the Justice Department
from using public money to raid, arrest or prosecute patients and
providers in states with medical marijuana laws.

It's expected to come up as early as next week, and Oakland's Angel
McClary Raich -- one of the patients who brought the case decided
Monday by the Supreme Court -- intends to go to Washington, D.C., to
testify for it.

The same amendment got 152 votes in 2003 and 148 in 2004, far short of
the 218 it needs for passage. But advocates say Monday's ruling --
that medical marijuana patients and providers can be federally
arrested and prosecuted -- might rally more support. Activists at a
candlelight vigil outside the 9th U.S. Circuit Court of Appeals' San
Francisco courthouse Tuesday evening urged lawmakers to sign on.

Most of the Bay Area delegation already is on board. But Rep. Dennis
Cardoza, D-Atwater, and Rep. Richard Pombo, R-Tracy, opposed the
amendment twice before. Neither could be reached for comment Tuesday,
but any change seems like a long shot

"Like most Americans and two-thirds of Congress, Congressman Cardoza
does not believe the use of marijuana for 'medicinal' purposes should
be legal. He has no plans to change his position on this issue,"
spokesman Bret Ladine said before last year's vote. "The amendment is
an attempt to circumvent existing federal law."

Pombo also is on record opposing medical marijuana.

Long shots in the House

The Hinchey-Rohrabacher amendment isn't the only pending legislation
on which medical marijuana proponents are pinning hopes, merely the
one with the most support.

Rep. Barney Frank, D-Mass., in May re-introduced his "States' Rights
to Medical Marijuana Act," to move marijuana to a less-restricted
status within the Controlled Substances Act and regulate its
production, possession and use as medicine. Among this bill's
co-sponsors are Barbara Lee, D-Oakland; George Miller, D-Martinez;
Pete Stark, D-Fremont; Tom Lantos, D-San Mateo; Lynn Woolsey, D-San
Rafael; Anna Eshoo, D-Palo Alto; and Mike Honda, D-San Jose.

But Frank has carried this or similar bills in every session since
1995. Last time, it died without a hearing in a House subcommittee.
And it now has 36 co-sponsors compared with 44 last session.

Last session also saw a "Truth in Trials Act" to let marijuana
defendants plead a medical defense to federal juries. It was inspired
by the prosecution of Oakland's Ed Rosenthal, convicted in 2003 of
felony marijuana cultivation after a judge barred him from mentioning
his medical motive.

But this bill's House version -- introduced by Rep. Sam Farr, D-Santa
Cruz, with 44 cosponsors -- also died without a hearing. A Senate
version was introduced in November, just weeks before the session's
end. It also went nowhere and has not been reintroduced in this session.

It's not surprising medical marijuana advocates had looked to the
courts for relief. They still have options there, although many
believe the case decided Monday was their best hope.

Denied in the courts

The U.S. Supreme Court decided Monday that Congress is
constitutionally empowered to regulate activity that happens entirely
within a state's borders and without money changing hands if there's a
rational belief that this activity contributes to commerce across
state lines. This Commerce Clause argument is actually only one of
several that Raich and co-plaintiff Diane Monson of Oroville raised in
their lawsuit.

Among their other claims was that federal interference violates the
Fifth Amendment due-process rights of Californians to be free from
pain, prolong their lives and maintain the physician-patient
relationship's sanctity. They'd also claimed medical necessity should
provide an exception to the federal ban on marijuana.

Those arguments were rejected by a federal judge in San Francisco but
never considered by the 9th U.S. Circuit Court of Appeals, which went
no further than finding Raich and Monson likely to prevail on the
Commerce Clause claim. Robert Raich, Angel's husband and attorney,
said Monday that they'll now consider whether to re-ignite the
due-process and medical-necessity claims before the 9th Circuit.

The Supreme Court rejected a medical-necessity exception for
collectively growing and distributing marijuana in the Oakland
Cannabis Buyers Cooperative's case in 2001. The justices did, however,
leave open the question of whether an individual patient could claim a
medical necessity exception.

University of California, Berkeley Boalt Hall School of Law Professor
Jesse Choper said Tuesday the due-process claim would be "an uphill
battle, but it's not off the charts."

He cited two Supreme Court opinions on assisted suicide. "You can
cobble together, by inference at least, a position of a majority of
the court ... that under certain circumstances, they were willing to
recognize a substantive due process right to take life if it's being
done consentually by the individual," he said.

"Under those circumstances, it seems to me it's by no means an
impossible move to say, 'If you've tried every other drug on the
planet and you still have substantial pain, you have a right to
marijuana if it's medical benefit is substantiated,'" Choper said.
"You have to work to get there, but it's not simply going on hope. .
There's a logically developed argument."
- ---
MAP posted-by: Derek