Pubdate: Thu, 09 Jun 2005
Source: Missoula Independent (MT)
Copyright: 2005 Missoula Independent
Author: Jessie McQuillan
Cited: Gonzales v. Raich
Cited: Drug Policy Alliance
Cited: National Organization for the Reform of Marijuana Laws
Bookmark: (Cannabis - Medicinal)
Bookmark: (Walters, John)
Bookmark: (Raich v. Gonzales)

States' Rights Take a Hit


When the Supreme Court ruled 6-3 Monday that federal authorities can
ignore state laws condoning medical marijuana and prosecute patients
who use marijuana under state programs, Montana's new medical
marijuana registry wasn't affected on its face. But the decision does
reinforce the disconnect between federal and state authorities, and it
props the door open for federal intervention in states like Montana
that have sanctioned medicinal marijuana.

"There won't be any state prosecutions for medical marijuana use,"
Montana Attorney General Mike McGrath said Monday in response to the
ruling. "We still have a valid law in Montana and a person can get a
prescription from their doctor, get on the registry and use marijuana
for medical purposes under state law."

The court's opinion, written by Justice John Paul Stevens, does mean
that medical marijuana users in the 10 states that protect them must
continue to fear federal prosecution. But since the bulk of marijuana
prosecutions are pursued by state and local law enforcement--a Drug
Policy Alliance survey found fewer than 20 federal prosecutions of
medical marijuana users or growers since 1996, The New York Times
reported Tuesday--the risk may prove slight.

And though federal agents now have a fresh license to prosecute sick
and dying patients who find relief in the leaf, American citizens
increasingly support citizens' right to use marijuana as medicine.

In November, 62 percent of Montanans approved a medical marijuana
initiative, making Montana the 10th state in the last decade to
support the notion, following California, Oregon, Alaska, Colorado,
Hawaii, Maine, Nevada, Vermont and Washington. Of the 10, the
Associated Press reported Monday that only Oregon responded to the
ruling with trepidation about the standing of its law: Oregon
officials stopped issuing medical marijuana cards, saying the ruling
needed to be reviewed before the program could continue.

The other states are all standing firm, most reiterating that the
federal government never condoned state medical marijuana programs in
the first place.

President Bush's Drug Czar, John Walters, struck an aggressive pose in
response to the ruling, saying in a statement, "Today's decision marks
the end of medical marijuana as a political issue," and asserting that
the court's decision establishes "so-called medical marijuana" isn't a
valid form of medicine and that "We have a responsibility as a
civilized society to ensure that the medicine Americans receive from
their doctors is effective, safe and free from the pro-drug politics
that are being promoted in America under the guise of medicine."

Though Walters' comments strove for authority, they gloss over the
fact that the court's opinion steered clear of marijuana's medicinal
properties and merely addressed the government's right to regulate
interstate commerce through the federal Controlled Substances Act.
Stevens specifically identified Congress, not the courts, as the forum
in which to change federal marijuana laws, and predicted that
supporters of medical marijuana "may one day be heard in the halls of

Like McGrath, John Masterson, executive director of Montana NORML (the
National Organization for the Reform of Marijuana Laws), stresses that
the ruling does not impact Montanans' ability to legally use medical
marijuana under state rules. "Patients had much to gain and little to
lose with this decision," he says. "Just as before, patients are
protected by state law."

Roy Kemp, the licensing bureau chief of the Montana Department of
Public Health and Human Services, which administers the state's
medical marijuana registry, says the confidential program has been
proceeding smoothly: 119 patients in 25 counties have signed on since
the registry was created at the end of 2004. To be recognized on the
registry, a prospective patient must submit a doctor's recommendation
that recognizes the patient's debilitating medical condition and
judges the benefits of medical marijuana to outweigh potential health
risks. Qualifying patients can grow their own marijuana or designate a
caregiver to grow or obtain marijuana for them, and a patient or
caregiver is allowed to possess six plants or up to one ounce of
marijuana at a time. Kemp says 82 Montana physicians and 42 caregivers
have signed on to assist qualifying patients, and as part of the
approval process his office performs checks to ensure participating
doctors are licensed by the state, and that appointed caregivers have
never been convicted of felony drug offenses.

Application must be accompanied by a $200 fee and renewed

Though state officials and medical marijuana advocates stress that
Montana patients aren't at any greater risk than in the past,
Missoula's Robin Prosser was dismayed by Monday's ruling.

Prosser, a registered user who suffers from nausea and pain caused by
an immunosuppressive disorder, smoked a joint on the Higgins Avenue
bridge Monday as a personal protest, because "I think it's a slap in
the face of all the Montana voters I'm beyond livid, somebody needs
to wake everybody up and I don't know what it will take." Although she
carried her registered user card and no state or local authorities
could have legally stopped her, she worried about federal agents and
said she's scared of losing her disability payments and housing
subsidies due to federal prosecution. She says people are afraid to
help her obtain or grow marijuana because of the federal threat, and
that she had purchased growing equipment in anticipation of a decision
favorable to states' rights, but now she isn't sure what she'll do.

But in the long view, the ruling dealt a more serious blow to states'
rights than to medical marijuana proponents. The high court's decision
signals an apparent retreat from recent rulings that broadened states'
rights--federal laws governing gun possession near schools and
violence against women both were recently shot down on the grounds
that local authority should hold sway. In her dissenting opinion,
Justice Sandra Day O'Connor held that the federal government, in
trying to regulate medical marijuana, overreaches its power: "The
states' core police powers have always included authority to define
criminal law and to protect the health, safety and welfare of their
citizens," she wrote.

According to the court's majority, that's no longer the case. Montana
continues to disagree. 
- ---
MAP posted-by: Richard Lake