Pubdate: Fri, 17 Jun 2005
Source: In These Times Magazine (US)
Copyright: 2005 In These Times
Contact:  http://www.inthesetimes.com/
Details: http://www.mapinc.org/media/207
Author: Steven Wishnia
Cited: Gonzales v. Raich ( www.angeljustice.org/ )
Cited: Drug Enforcement Administration ( www.dea.gov )
Cited: Wo/Men's Alliance for Medical Marijuana http://www.wamm.org/
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

THE CANNABIS WAR

Supreme Court Decides One Battle, But Activists Vow To Fight On

Homegrown medical marijuana qualifies as interstate commerce, the
Supreme Court ruled June 6, in the second major setback it has
delivered to pot patients.

By a 6 to 3 margin, the Court refused to grant an injunction
protecting California medical-marijuana users Angel McClary Raich and
Diane Monson from federal prosecution. As Monson grows her own and
Raich gets hers donated by another California resident, the two women
had argued that their supply is neither interstate nor commerce, so
the federal government does not have the right to supersede
California's law allowing medical use.

Justice John Paul Stevens, who wrote the majority opinion,
acknowledged that Raich and Monson had "strong arguments" for medical
marijuana; Monson suffers severe back spasms, and Raich, who suffers
from a host of afflictions, says she would be dead without marijuana.
But the main issue in this case, he wrote, was "whether Congress'
power to regulate interstate markets for medicinal substances
encompasses the portions of those markets that are supplied with drugs
produced and consumed locally."

Personal medical-cannabis cultivation could increase the overall pot
supply to the point where it would affect interstate commerce, Stevens
argued, and allowing it would undermine the regulations needed to
control illegal drugs and ensure the safety of legal medicines.

That logic, Justice Sandra Day O'Connor responded in dissent, would
"extend Commerce Clause authority to something as modest as the home
cook's herb garden." The Court's definition of economic activity, she
wrote, is so broad that it "threatens to sweep all of productive human
activity into federal regulatory reach."

In a separate dissent, Justice Clarence Thomas wrote that the federal
government has the right to suppress local marijuana cultivation or
use, but California could legitimately exempt medical growers and
users from prosecution. The Bush administration, he added, had failed
to offer "any obvious reason why banning medical marijuana use is
necessary to stem the tide of interstate drug trafficking."

Ironically, Thomas wrote the majority opinion in the Court's 2001
decision, which held that since Congress has ordained that marijuana
has no legitimate medical use, clinics could not claim "medical
necessity" as a defense against pot-selling charges.

The interstate-commerce argument, several advocates say, was a weaker
case than the medical-necessity defense. "I did not think that was the
best argument," says Rep. Barney Frank (D-Mass.), who has introduced a
bill to bar the federal government from prosecuting medical-marijuana
users in states where it is legal. "It would have had very negative
implications for federal power." The Commerce Clause is the basis for
numerous federal laws, from occupational-safety regulations to banning
racial discrimination in hotels.

"It was the liberals who did it in," notes Allen St. Pierre of the
National Organization for the Reform of Marijuana Laws. The Court's
liberal justices, he explains, were clearly sympathetic to the
patients' plight, but uncomfortable with weakening the Commerce
Clause's use.

The ruling does not invalidate medical-marijuana laws in the 11 states
that have them, and most pot prosecutions are state-level. Instead, it
leaves the status quo intact: Under federal law, anyone who grows or
distributes pot is a felon--even if they're giving it to a migraine
sufferer who's going to vomit if he can't get a couple of tokes quickly.

Medical-marijuana providers have simply been defying the law with the
sanction of local governments. Under John Ashcroft, the Bush
administration made medical pot a top priority, going after even
small-scale growers; federal agents destroyed Diane Monson's six-plant
garden in 2002. But it was embarrassed when several high-profile cases
backfired. After a 2002 raid on the Wo/Men's Alliance for Medical
Marijuana (WAMM) collective outside Santa Cruz, Calif., resulted in a
confrontation between armed DEA agents and patients in wheelchairs,
Santa Cruz County won a temporary injunction halting future raids. "We
plan to go on. People are dying. We can't stop," says a WAMM volunteer.

Immediately after the Raich decision, Oregon officials announced that
the state would temporarily stop issuing new ID cards for pot
patients, and Alaska is considering a similar move. In California,
which has over 150 medical-marijuana providers, local governments have
been more supportive. "It really doesn't affect us," says Jane Weirick
of the Compassion and Care Center in San Francisco, which will
"absolutely" keep operating.

State efforts will continue. Rhode Island's state senate approved a
medical-marijuana bill on June 7, and New York's legislature may enact
one this year. Nationally, Reps. Maurice Hinchey (D-N.Y.) and Dana
Rohrabacher (R-Calif.) have introduced a budget amendment that would
bar the use of federal funds to arrest, raid or prosecute patients in
states where medical marijuana is legal.

"I'm kind of encouraged," says Frank. "This is one issue where the
more public it becomes, the better we do, though obviously we're far
from our goal."
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MAP posted-by: Larry Seguin