CALIFORNIA WOMEN MAKE A NEW CASE FOR MEDICAL MARIJUANA

Aghast at Federal Agents' Raids After 9/11, They Sue the Government, Saying
the Commerce Clause of the Constitution Doesn't Apply to The Pot They Use.

OAKLAND -- She is fast becoming America's best-known pot patient, the woman
whose case may help decide whether marijuana has an unfettered future as
medicine.

Angel Raich takes her case before the nation's highest court Monday in a
bid to keep the federal government from threatening her use of the leafy herb.

To the U.S., cannabis is illegal for any use. To Raich, it is a lifesaver.

The U.S. Supreme Court will wade into a thicket rife with confusion since
California voters approved the nation's first medical marijuana ballot
measure in 1996.

Facing the high court will be various issues: the right of a state to
sidestep federal laws, the ability of Congress to regulate interstate
commerce, and the needs of a nation to police illegal drugs versus the
needs of the seriously ill.

Bracketing the legal arguments are the stories of Raich, a 39-year-old
mother who suffers from more than a dozen ailments she says don't respond
to traditional treatments, and her co-plaintiff, Diane Monson, 47, of Butte
County.

Monson started using cannabis half a dozen times a day to fight chronic
back spasms after her doctor recommended it when other therapy failed.

"I would be dead right now" without cannabis, Raich contends.

The roots of her battle date from the weeks after the terrorist attacks of
Sept. 11, 2001. At that time, Raich, a mother of two who had been using
marijuana for several years to combat illnesses including a brain tumor,
fibromyalgia and a chronic wasting condition, watched in disbelief as
federal drug agents raided and shut down several medical marijuana
dispensaries.

Aghast at what she and many other "medpot" activists viewed as a
misappropriation of federal resources better used in the war against
terrorism, Raich and her husband, Oakland attorney Robert Raich, decided
something must be done. They recruited Monson, who had had her home raided
and six medical pot plants uprooted by federal agents, and filed a lawsuit
in October 2002 against the U.S. government.

They asked that the federal government be blocked from arresting either
woman, suing them civilly and seizing their medical cannabis or property
through asset forfeiture.

Prior lawsuits had claimed that marijuana patients should be allowed to use
a federally outlawed drug out of medical necessity, but attorneys for the
two women took a different tack -- basing their argument on the commerce
clause of the Constitution.

Under the Constitution, Congress can regulate the flow of commercial
products and services between states. That bedrock principle was applied
when Congress adopted U.S. drug laws in 1970 against trafficking of
marijuana and illegal narcotics, such as LSD and heroin.

Raich and Monson argued that the commerce clause did not apply to their use
of medical marijuana. Monson grows her marijuana at home with seeds from
the prior year's crop -- nothing ever crosses state lines.

Likewise, Raich says her medical pot is essentially homegrown. The cannabis
is donated by two California growers -- named only John Doe No. 1 and No. 2
in the lawsuit -- who use seeds, soil and water from the Golden State.

What might seem legal sleight of hand has become a knockdown fight largely
over states' rights.

When the pair prevailed before the U.S. 9th Circuit Court of Appeals a year
ago, the U.S. appealed. As federal lawyers see it, the federal Controlled
Substances Act trumps state laws authorizing medical marijuana (nine states
besides California have legalized cannabis as medicine).

Even in cases where illegal drugs are not trafficked between states,
federal attorneys argue, the local cultivation, distribution and possession
of pot cannot be distinguished from interstate trafficking. Government
lawyers argue that U.S. drug agents would face "staggering" difficulties
trying to differentiate between illegal drugs transported between states
and narcotics that never cross a state line.

To back up the argument, the U.S. cites the 1942 case involving farmer
Roscoe Filburn and his wheat crop.

The U.S. Supreme Court upheld a fine against Filburn for growing more wheat
than allowed under a federal cap, which was put in place to regulate
interstate commerce of the crop. Filburn argued that the excess wheat never
left his farm, but was used to bake bread and feed his animals.

Federal lawyers argue that the medical marijuana of Monson and Raich, much
like Filburn's wheat, remains a crop subject to federal authority even if
it doesn't enter the stream of commerce.

The lawyers say in a brief that medical marijuana has a substantial effect
on interstate commerce, with excess pot potentially diverted to illegal
trade or patients turning to dealers when their supplies run short.

Raich and Monson have received support and opposition -- some expected,
some a bit surprising.

Briefs supporting the government have come from the Drug Free America
Foundation, Save Our Society From Drugs and other longtime combatants in
the war on drugs. Those groups call the case a "Trojan horse tactic" by
drug legalization advocates, and say superior medications could be used
instead of marijuana.

Several members of the U.S. House of Representatives also backed the
government in a legal brief, saying medical marijuana gave traffickers
"safe havens" and a new way to avoid arrest. They suggested the Raich case
could have "far-reaching implications," opening the door to arguments for
the medical use of cocaine, heroin and methamphetamine.

On the streets, "there's no difference between the marijuana that sick
people use" and the pot bought by addicts, said Richard Meyer, a U.S. Drug
Enforcement Administration spokesman in San Francisco. "We have no beef
with sick people. But we have no compassion for the dealers who are preying
on these sick people."

Raich and Monson have received support from several pro-legalization
groups, as well as medical associations and several states -- including
three states staunchly against medical marijuana.

Alabama, Louisiana and Mississippi side with the federal government's
regulation of pot, but support the argument made by Raich and Monson about
Congress overstepping on a matter of interstate commerce.

They argue in a brief that the Constitution permits states to serve as
"laboratories for experimentation" on novel social and commercial
enterprises. The federal system allows states to set criminal policy, they
say, arguing, "As a sovereign member of the federal union, California is
entitled to make for itself the tough policy choices that affect its citizens."

Activists hope the high court acts to shield medical marijuana patients
from federal threat. If Raich prevails, several other medical marijuana
cases could follow. The most notable is a bid by a Santa Cruz County
collective of 200 patients who engage in noncommercial cultivation of
medical marijuana.

While activists are playing up the big stakes of the Raich case, they're
downplaying the consequences if the bid should fail.

Steph Sherer, executive director of Americans for Safe Access, said a
Supreme Court defeat would be a blow -- but not a fatal one. "If Raich
loses," she said, "California still will have its law. Losing won't mean
the end of medical marijuana."

Raich, a waif of a woman in constant combat with her various ills, would
just like the time to arrive "when we can be taken off the battlefield."

Life is hard enough as is, she said. She uses pot every two hours to ward
off pain -- and keep weight on. She can lose a pound a day if her appetite
ebbs.

In an upstairs room, Raich heats up her cannabis with a vaporizer. The
machine injects a cloud of pot into a clear sack. She holds it like a bag
of cotton candy, taking hits from a nozzle at the end.

"This isn't about recreation," she says between puffs. "I don't like doing
this. It's not something I've chosen. But I had to do it for my kids. To
stay alive."