MEDICAL MARIJUANA BEFORE SUPREME COURT

Federal Power to Control Drug Use Vs. States' Health Care Laws

Two Northern California women who say medical marijuana is their only
shield from a life of agony take their case to the U.S. Supreme Court on
Monday in a clash between federal power to regulate drug use and a state's
authority to determine medical care for its residents.

It is a case of unusual alliances, with some prominent conservative
organizations siding with the patients on the issue of states' rights and
limited federal powers. A ruling is due by the end of June.

This will be the court's first look at medical marijuana since 2001, when
the justices upheld the federal shutdown of an Oakland pot dispensary and
found no exemption in federal drug laws for claims of medical necessity.
The case appears to represent advocates' last hope of winning legal
protection from the federal crackdown that began in 1996, when Californians
approved the nation's first law allowing patients to use marijuana with a
doctor's approval.

Similar laws have been passed since then in nine other states: Washington,
Oregon, Alaska, Hawaii, Nevada, Colorado, Maine, Vermont and Montana. But
federal law since 1970 has classified marijuana as a dangerous drug with no
legitimate use and has prohibited possession, cultivation and distribution.

The Bush administration has enforced the law aggressively in California,
with a series of raids and criminal prosecutions. The question before the
court is whether individual patients -- and, possibly, some of their
suppliers -- are immune from federal enforcement.

The argument goes like this: The Constitution authorizes Congress to
regulate interstate commerce. But no interstate commerce is involved when
patients, acting legally under state law, use marijuana that was grown
within the state and supplied without charge.

The counterargument, by the government and its allies, is that all illicit
drug use affects interstate commerce. Even freely supplied marijuana boosts
the demand for the drug, reduces the overall supply and may affect the
price, the government says; in addition, pot looks the same whether it's
grown locally or shipped between states.

The Ninth U.S. Circuit Court of Appeals in San Francisco ruled in favor of
the patients last December, saying their use of marijuana was noncommercial
and was beyond the power of Congress to prohibit. The court also told
federal judges to decide whether the ruling -- if it survives Supreme Court
review - - would protect a marijuana cooperative in Oakland, which was
closed by a government lawsuit, and another in Santa Cruz, which was raided
by federal agents.

One of the plaintiffs in the case before the Supreme Court, Angel Raich of
Oakland, obtains marijuana from two anonymous suppliers and uses it every
two hours to ward off pain and loss of appetite from a brain tumor, seizure
disorder and other debilitating conditions. Co-plaintiff Diane Monson of
Oroville (Butte County) takes marijuana to combat back pain and muscle
spasms and grew her own plants until federal agents seized them in 2002.
Both have doctors' recommendations and say they tried all available legal
medicines without success.

Their hopes depend on swaying one or more of the court's conservative
justices, who, under the banner of federalism, have issued a series of
rulings since 1995 limiting the federal government's power over the states.
Two rulings have overturned federal laws -- one that banned gun possession
near schools, another that allowed victims of rape and domestic violence to
sue in federal court -- on the grounds that they did not affect interstate
commerce.

To that end, lawyers for Raich and Monson have enlisted major conservative
and libertarian groups to woo the justices on states' rights.

In one court filing, the Cato Institute argued that the power-sharing
agreement made by the original 13 states in ratifying the Constitution "is
dishonored when citizens in great physical pain are deprived of available
medical treatment by a remote sovereign on the far side of the continent."

"Federalism ... allows for experimentation at the state level," declared
the Institute for Justice, another conservative-leaning libertarian
organization, whose brief called for a return to limits imposed by courts
in the 1930s on federal authority to regulate in-state activities.

On the other side, the government's supporters include one group, Community
Rights Counsel, usually associated with liberal causes such as
environmental protection. Its brief urged the court to preserve federal
"legislative flexibility to address national concerns" such as drug
trafficking.

Another hurdle for Raich and Monson is the fact that they are asking the
court to grant a partial exemption to the government-declared war on drugs
for states with medical marijuana laws. This would be in open defiance of
Congress, which has repeatedly declared that marijuana has no medical value.

"The 'medical marijuana' concept is a Trojan horse tactic toward the goal
of legalization," said the Drug Free America Foundation and other anti-drug
organizations in a filing in support of the federal government's position.
They said initiatives like California's Proposition 215 promote "medicine
by popular vote."

A brief by seven Republican members of Congress said exempting medical
patients from federal marijuana laws would make their states "a haven for
drug traffickers" and return the nation to "the 19th-century age of quack
medicine. " The Justice Department, in its written arguments, warned that
any exemption for in-state possession and distribution would create a new
class of drug manufacturers and pharmacies immune from federal regulation.

Medical marijuana advocates and their allies responded indignantly.

"Just because Congress says it does not make it so," said the National
Organization for the Reform of Marijuana Laws, referring to congressional
findings on the dangerousness and uselessness of marijuana. "The
chronically ill in California are the casualties in this war."

The patients also draw support from some medical organizations, including
the California Medical Association, which signed a brief arguing that
seriously ill people should make their own medical decisions, in
consultation with health professionals.

In this case, the brief said, "the alternative to which the government
would relegate them is ... a life of unremitting, unrelieved physical pain."

The case is Ashcroft vs. Raich, 03-1454.