Pubdate: Wed, 15 Jun 2005
Source: Windy City Times (Chicago, IL)
Copyright: 2005 Windy City Media Group
Contact:  http://www.windycitymediagroup.com/windycitytimes.html
Details: http://www.mapinc.org/media/3204
Author: Bob Roehr
Cited: Gonzales v. Raich http://www.angeljustice.org
Bookmark: http://www.mapinc.org/topics/Raich (Gonzales v. Raich)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

SUP. COURT ALLOWS PROSECUTION OF MEDICAL MARIJUANA PATIENTS

The U.S. Supreme Court reaffirmed the right of the federal government
to prosecute patients for the medical use of marijuana even in states
that allow such use.

The 6-3 ruling in Gonzales v. Raich, issued on June 6, centered on
arguments of commerce and federalism and splintered traditional
liberal-conservative lines on the bench. It did not address
constitutional questions of a medical necessity defense, which remain
to be litigated.

Justice John Paul Stevens, writing for the majority, made clear early
in his decision that the question before the Court was not the wisdom
of prosecuting sick people but whether Congress, through the
Controlled Substances Act ( CSA ) , had the authority to do so.

The cornerstone of his argument was the Wickard decision, a 1942
ruling that Congress could regulate a farmer's growing of wheat for
his own use because that "would undercut the regulation of the
interstate market in that commodity."

"One need not have a degree in economics to understand why a
nationwide exemption for the vast quantities of marijuana ( or other
drugs ) locally cultivated for personal use ( which presumably would
include use by friends, neighbors, and family members ) may have a
substantial impact on the interstate market for this extraordinarily
popular substance," wrote Stevens.

He made clear that they were not addressing the issue of a "medical
necessity defense." The plaintiffs raised that issue in their initial
lawsuit but the Ninth Circuit Court of Appeals chose to make their
decision on the basis of law rather than constitutional issues.

Stevens pointed supporters of the medical use of marijuana to "the
halls of Congress" to reclassify marijuana from a Schedule I to a less
restricted class of substance.

Justice Sandra Day O'Connor, in a dissent joined by Chief Justice
William Rehnquist and Justice Clarence Thomas, saw significant
differences between the facts of Wickard, where several tons of wheat
were involved, and "something as modest as the home cook's herb
garden" in the Raich case.

The former state legislator said, "This case exemplifies the role of
States as laboratories" in addressing the admittedly complex issues
surrounding marijuana. She lambasted the majority for allowing federal
authority to ride roughshod over the traditional authority of states
"to define criminal law and protect the health, safety, and welfare of
their citizens."

"The Court's definition of economic activity is breathtaking,"
O'Connor wrote. "To draw the line wherever private activity affects
the demand for market goods is to draw no line at all, and to declare
everything economic."

Justice Clarence Thomas was even more scathing in taking his
colleagues to task for expanding the "Commerce Clause" to entail all
economic activity. "If the majority is to be taken seriously, the
Federal Government may now regulate quilting bees, clothes drives, and
potluck suppers throughout the 50 States."

"This Court has carefully avoided stripping Congress of its ability to
regulate interstate commerce, but it has casually allowed the Federal
Government to strip States of their ability to regulate intrastate
commerce--not to mention a host of local activities, like mere drug
possession, that are not commercial."

Thomas concluded, this makes "a mockery" of the concept of federalism.
"The majority is not interpreting the Commerce Clause, but rewriting
it."

Reactions

Advocates for the medical use of marijuana were disappointed but not
surprised by the decision. "I'm going to have to be prepared to be
arrested," Angel Raich told an Oakland news conference. The lead
plaintiff in the case suffers from an inoperable brain tumor and other
maladies. She uses marijuana every few hours to provide some degree of
relief from their symptoms.

"It is absolutely cruel that the federal government does not allow us
the right to use this medicine," Raich told a Capitol Hill rally in
May. "If we lose, it means that the road to our work has only begun.
As long as I have breath in my little 100-pound body, I will fight, I
will stand up. I am not going to give up."

"Just because the Supreme Court has said the federal government can
continue to arrest medical marijuana patients doesn't mean the federal
government must do so," said Rob Kampia, executive director of the
Marijuana Policy Project.

He noted that federal agents make only one percent of the nation's
750,000 marijuana arrests every year. "Patients in states with medical
marijuana laws retain a high level of protection. Congress should act
today to give those patients complete protection from arrest."

Rep. Maurice Hinchey, D-New York, will offer an amendment to the
appropriations bill for the Department of Justice to prevent it "from
dispensing funds to arrest, prosecute, sue, or otherwise discourage
doctors in states from following their state laws with regard to the
medicinal use of this product." That vote is likely to come in mid-June. 
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MAP posted-by: Richard Lake