Pubdate: Fri, 10 Jun 2005
Source: Boston Phoenix (MA)
Copyright: 2005 The Phoenix Media/Communications Group.
Contact:  http://www.bostonphoenix.com/
Details: http://www.mapinc.org/media/54
Cited: Gonzales v. Raich ( www.angeljustice.org/ )
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/opinion.htm (Opinion)
Bookmark: http://www.mapinc.org/topics/Raich (Raich v. Gonzales)

THE CASE FOR MEDICAL POT

Now That the Supreme Court Has Said No, It's Time for Congress to Say
Yes

BEFORE SHE BEGAN smoking marijuana in the late 1990s, Angel Raich says
she could not get out of her wheelchair, so disabled was she by a
brain tumor, chronic-wasting syndrome, and a variety of other
ailments. Although she still lives with constant pain, today the
California mother is able to walk, eat, and lead something approaching
a normal life. "For years I felt as if I was suffering in Hell," Raich
has written. "What I had to endure was unbelievable and indescribable
torture. I will not go back to Hell for anyone or anything.... Without
cannabis my life would be a death sentence."

This past Monday, the US Supreme Court took a step that could
re-impose a hellish existence on Raich and other seriously ill people
who depend on marijuana to give their lives some semblance of balance.

In a six-to-three decision, the justices ruled that a federal law
outlawing marijuana supersedes the laws of 10 states -- including
California and two New England states, Maine and Vermont - that allow
patients, with their doctors' permission, to possess marijuana for
their own personal use. (Rhode Island legislators are considering a
similar bill.)

The decision flies in the face of scientific evidence that marijuana
is uniquely effective in countering nausea in cancer patients
undergoing chemotherapy; appetite loss experienced by people with
AIDS; pain; and anxiety. It also contradicts a Time/CNN poll, taken in
October 2002, that found 80 percent of respondents "think adults
should be able to use marijuana legally for medical purposes." But the
court's decision was not about science or public opinion; rather, it
was about the law. That is the proper business of the courts.

And it is up to our elected officials to change the law when it makes
no sense.

For 10 years now, US Representative Barney Frank, a Massachusetts
Democrat, has been filing legislation that would give states the right
to permit the medicinal use of marijuana.

He filed the bill again last month. In an interview with the Phoenix
this week, Frank said he sees the issue as similar to the efforts of
conservatives to keep Terri Schiavo attached to a feeding tube, and to
stifle research into the possible uses of embryonic stem cells.

As with those other hot-button issues, Frank says, the conservatives
are on the wrong side of science and public opinion.

"I'm trying to sell this as the third example of 'We're not doctors,
we just play them on C-SPAN,'" says Frank of his bill, formally known
as the States' Rights to Medical Marijuana Act, or HR 2087. "It may
appeal to some of the more anti-government, libertarian instincts."
Still, Frank doesn't have much hope of its passing for at least a few
more years; he adds that he's more optimistic about a bill he's
sponsoring that would end the ban on government aid to college
students who've been convicted of minor drug offenses.

In the absence of congressional action on medical marijuana, it was up
to the Supreme Court this week to parse the fine points of
constitutional principle.

A particularly striking aspect of the court's decision was that both
liberals and conservatives found themselves in an awkward position.

Writing for the majority, Justice John Paul Stevens, perhaps the most
liberal member of the court, said federal law must prevail even though
he sympathized with the plight of Raich and her fellow patients.

And Justice Sandra Day O'Connor, writing for the conservative
minority, said that California's medical-marijuana law should be
upheld even though she personally would have opposed it had she been a
resident of that state.

Thus the fate of patients who depend on marijuana was made subservient
to the never-ending debate over federalism and states' rights.

That three conservative justices -- O'Connor, Clarence Thomas, and
Chief Justice William Rehnquist -- would vote to affirm the right of
states to allow the use of medical marijuana was of no small
significance. Though the most conservative justice of all, Antonin
Scalia, voted with the liberals to uphold the federal anti-drug law,
O'Connor, Thomas, and Rehnquist, to their credit, stuck to their
limited-government principles rather than give in to any squeamishness
they might feel about pot-smoking.

Stevens based his majority decision on the federal government's
constitutional power to regulate interstate commerce (a power it holds
by virtue of the Constitution's "commerce clause"), which seems a
stretch given that marijuana cannot legally be sold anywhere in the
United States. But O'Connor, invoking Louis Brandeis's view that the
states should be free to experiment with social policies, wrote, "This
case exemplifies the role of States as laboratories." Added Thomas: "If
Congress can regulate this under the Commerce Clause, then it can
regulate virtually anything."

The case of Gonzales v. Raich is not yet over. The federal appeals
court will now consider the lawsuit on grounds other than the commerce
clause, and it could be some years before this is decided one way or
the other.

Nor is there any imminent threat that federal agents are going to
storm the homes of cancer-stricken pot-smokers to confiscate their
marijuana plants. (Although in George W. Bush's America, you never
know: this all started in 2002, when officials with the federal Drug
Enforcement Administration raided the California home of Diane Monson,
a chronic-pain patient, and destroyed her six marijuana plants. Monson
became Raich's co-plaintiff.)

Ultimately, though, this issue should be decided by Congress. If, as
Justice Stevens suggests, Congress has a constitutional right to
outlaw marijuana, then it has a moral and ethical obligation to end
that ban in the case of seriously ill people who could benefit from
cannabis's medicinal properties. There is a serious argument to be
made that marijuana should not be illegal at all, but that's a matter
for another day. What's at issue here is the absurdity of a patchwork
of laws that allows doctors to prescribe dangerous but
sometimes-necessary drugs such as OxyContin and morphine, but not
marijuana, a considerably more benign substance.

The Supreme Court's action this week may or may not have been right
from a legal and constitutional point of view. But it is outrageous
that seriously ill patients cannot obtain legal access to the drugs
they need, including marijuana.

On issues ranging from stem-cell research, to global warming, to the
teaching of evolution in schools, President Bush and the Republican
majority in Congress have demonstrated a shocking hostility to science.

Sadly, that seems unlikely to change anytime soon. 
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MAP posted-by: Richard Lake