FIRST MEDICAL MARIJUANA, NEXT ABORTION RIGHTS

You might not think that there is a connection between "medical
marijuana" and abortion rights, but the law works in complex ways.
And it turns out that a recent decision by the U.S. Supreme Court,
though seemingly limited to the question of controlled substances,
just might initiate the next assault on the right to choice.

In United States vs. Oakland Cannabis Buyers Cooperative, the Supreme
Court held that federal law does not permit the distribution of
medical marijuana, even to alleviate the suffering of cancer victims
and AIDS patients. But marijuana is not exactly a popular cause, and
that's too bad, because the implications of the court's decision go
well beyond the narrow question of medical marijuana. In fact, the
majority's reasoning may well have a direct impact on the future of
abortion law in the United States.

The precise question in the case was whether the federal courts could
recognize a "medical necessity" exception to the Controlled
Substances Act. Without such an exception, the distribution of
marijuana is always illegal under federal law, even in the eight
states (Alaska, Arizona, California, Colorado, Maine, Nevada, Oregon
and Washington) that have passed medical marijuana initiatives.

The court's five conservative justices held, in an opinion written by
Justice Clarence Thomas, that no such exception is possible even in
the case of desperately suffering cancer victims, because an act of
Congress has conclusively determined that "marijuana has no currently
accepted medical use at all." That congressional determination is
flatly contradicted by leading scientific authorities, including the
California Medical Association and the National Institute of
Medicine. But according to Justice Thomas, Congress may make binding
medical judgments, not subject to review by the courts, no matter
what patients need and no matter what doctors say.

Now let's shift the discussion from marijuana to abortion.

Imagine that Congress passed a statute, let's call it the Controlled
Procedures Act, criminalizing some abortions by declaring that
"late-term abortion has no currently accepted medical use at all."
Following Justice Thomas's reasoning in the Cannabis Buyers case, the
courts would be helpless to intervene. If Congress can ignore the
weight of medical opinion concerning marijuana, why can't it make an
equally authoritative resolution concerning abortion? The prospect
for abortion rights become especially chilling when we recall that
Roe vs. Wade itself was premised on the right to privacy, meaning
that the government may not interfere in medical decisions made
between a woman and her physician. But now the Supreme Court seems to
be saying that Congress may enact blanket legislation that outlaws
certain necessary treatments, with no exceptions whatsoever.

Here is the most important language from the Cannabis Buyers case:
"It is clear from the text of the Act that Congress has made a
determination that marijuana has no medical benefits," and therefore
the Supreme Court is "unable in any event to override a legislative
determination manifest in a statute." In the hands of a determined
activist, that becomes a virtual road map for eviscerating Roe vs.
Wade.

There are differences, of course, between abortion and the limited
legalization of marijuana. But it is surely only a matter of time
before an anti-choice congressman introduces a bill that is directly
modeled on Justice Thomas' opinion. Late-term abortion, the proposed
law will say, has no medical benefits in the opinion of Congress, and
the Supreme Court is therefore "unable to override" such a statute.
When it comes to the Constitution, its supporters will argue that the
treatment of unwanted pregnancy should have no greater protection
than treatment for unwanted pain.

Late-term abortion legislation has been passed by Congress in the
past, only to be vetoed by President Clinton. The certainty of that
veto kept the issue of abortion restriction pretty much below the
public radar screen. Now things have changed. George W. Bush is in
the White House and Justice Thomas has neatly explained just how a
statute needs to be worded in order to bypass Roe vs. Wade and gain
approval by the Supreme Court.

In other words, get ready for war.