MEDICAL-POT FIGHT GOES TO JUSTICES

Angel Raich, a 39-year-old mother of two, smokes marijuana eight times
a day in her Oakland home.

Angel Raich says marijuana, prescribed by her doctor, helps relieve
her ailments which include tumors in her brain, seizures, spasms and
nausea.

She does it to relieve pain from a brain tumor and more than a dozen
other maladies. And she does it with her doctor's blessing and the
permission of the state of California, which allows medical patients
to use the otherwise illegal weed if recommended by a physician.

Since 1996, California and 11 other states have passed laws that ease
or eliminate sanctions for the medicinal use of pot. But the federal
government says it still has the right to prosecute Raich and patients
like her because federal law considers pot a harmful drug without
proven medical benefits.

On Monday, in a lawsuit brought by Raich and another patient, the U.S.
Supreme Court takes up a question that a growing number of medical
marijuana users say is critical to their physical well-being and that
the federal government says is important to its war against illegal
drugs: When it comes to pot and patients, does federal or state law
rule?

'Couldn't go on' without it

"I understand that my case brings up an interesting point of law that
fascinates judges and lawyers," says Raich, whose husband, Robert, is
one of the lawyers on her case. "But for me, it's a matter of life and
death. With cannabis, I can play with my kids, walk without a
wheelchair, sometimes even get a few hours sleep at night. Without it,
I couldn't go on for very long."

Despite a drug war waged by the Bush administration and the Clinton
administration before it, marijuana remains a big illegal business. In
2000, Americans bought about $10.5 billion worth of marijuana from
drug dealers, according to an estimate by the Office of National Drug
Control Policy. Last year, the FBI recorded 755,286 marijuana arrests
- -- an all-time high.

Most arrests were for simple possession.

California voters approved the state's "compassionate use" act by
voting in 1996 to keep marijuana illegal except for patients under a
doctor's care. Raich, a self-described "proper conservative mom,"
tried pot a year later at the suggestion of a nurse. According to
papers filed by Raich's physician in her Supreme Court case, Raich
suffers from scoliosis, severe chronic pain, joint dysfunction,
endometriosis, fibromyalgia, non-epileptic seizures, an inoperable
brain tumor, a uterine fibroid tumor and post-traumatic stress
disorder, among other ailments.

Raich smokes marijuana in a pipe, eats it with her food and applies it
to her body as a salve at the rate of 3 ounces a week. She says it
curtails pain, eases breathing and has improved joint function.
Synthetic forms of marijuana, which are permitted by federal law, are
ineffective, Raich says. That's a common complaint of medical
marijuana users.

The Clinton administration refused to recognize California's law and
moved to shut down cooperatives that were set up in Oakland and other
communities to grow and distribute pot to patients. Cases challenging
that action are moving through federal courts.

The Bush administration went further, however, and conducted raids to
destroy marijuana grown for use by patients. In August 2002 in
Oroville, Calif., a local district attorney blocked attempts by
federal agents to destroy marijuana plants before the U.S. Justice
Department ordered him to step aside. The owner of the plants, Diane
Monson, a spinal-disease sufferer, joined Raich in filing suit to
block the federal government from enforcing federal marijuana laws
against California patients.

The medical marijuana users lost in U.S. District Court but won in the
U.S. Court of Appeals for the 9th Circuit, based in San Francisco. In
a 2-1 decision, the appeals court found that using federal drug law to
trump California's medical pot provision is an overreach that is
"likely unconstitutional"

In briefs filed with the Supreme Court, the Justice Department argues
that the wording in the Constitution that allows the federal
government to regulate interstate commerce permits it to trump any
state law that permits drug use. Pot grown in California for local use
must be considered to be interstate commerce, acting Solicitor General
Paul Clement says. Locally grown drugs can readily enter the
interstate market and cannot be differentiated from drugs produced for
drug dealers, he says. Allowing the federal government to criminalize
locally grown pot is vital to control illicit trafficking, Clement
argues.

Opponents of legalized marijuana have joined the case by filing briefs
that support the government. The Drug Free America Foundation notes
that under federal law, marijuana -- like heroin and Ecstasy -- is a
drug with "no currently accepted medical use."

'Trojan horse'

The foundation argues that the concept of medical marijuana is a
"Trojan horse" that could open the way to making all pot legal by
exploiting public sympathy for the sick. Raw marijuana, the
foundation's brief says, is not an approved medicine. It is a
dangerous drug with "proven negative effects" on users, including
disease sufferers.

Lawyers for Raich and Monson counter that growing pot locally for a
patient's own medicinal use is not an economic activity that the
Constitution's commerce clause covers. Attorney Robert Long cites
several opinions that indicate marijuana has been found to be an
effective medicine in some cases.

Quoting from a 1992 case that upheld a federal right to abortion, Long
writes that suffering by marijuana users "is too intimate and personal
for the (federal government) to insist ... upon its own vision."

The case could put conservatives on the Supreme Court on the spot.
Since the mid-1990s, Chief Justice William Rehnquist and Justices
Antonin Scalia and Clarence Thomas have trimmed federal attempts to
enter areas, such as gun regulation and pornography, that
traditionally have been covered by state or local ordinances.

But to do so in this case, notes Kermit Roosevelt, law professor at
the University of Pennsylvania, would place the conservatives on the
side of pot smoking.

Rory Little, a former federal prosecutor who teaches at the University
of California's Hastings College of Law in San Francisco, says it
"will be tough" for the medical marijuana side to overcome a
62-year-old Supreme Court precedent. In a 1942 case, an Ohio farmer
growing wheat for his own use was deemed to be participating in
interstate commerce -- and therefore subject to federal controls.