COURT WILL HEAR MEDICAL POT APPEAL

U.S. Seeking to Overturn State Law Protecting Marijuana
Patients

The U.S. Supreme Court cast a cloud on the medical marijuana
movement's biggest legal victory Monday when the justices agreed to
hear the Bush administration's appeal of a ruling that protects
marijuana patients in California from federal prosecution.

The administration is challenging a decision in December by the Ninth
U.S. Circuit Court of Appeals in San Francisco that barred federal
drug agents from interfering with the growing and use of marijuana by
two women, Angel Raich of Oakland and Diane Monson of Oroville (Butte
County).

The court will hear the case in the term that starts in October, with
a ruling due by the end of June 2005.

Medical marijuana advocates had hoped the case would end without
Supreme Court review. The case may represent their last chance to fend
off the federal government's attack on medical marijuana in
California, which followed passage of Proposition 215, the 1996
initiative that legalized medical use of the drug under state law.

The court that will decide the case has consistently rejected
challenges to federal drug laws. Three years ago, the justices
overturned another Ninth Circuit decision that would have allowed
cannabis clubs to distribute marijuana, without risking federal
prosecution, to patients who could show that they needed it to prevent
serious harm or death and that legal drugs were ineffective for them.

Attorneys for medical marijuana advocates then pinned their hopes on
the most sympathetic plaintiffs available -- individual, seriously ill
patients -- and on a legal argument that the Supreme Court has favored
in other contexts, the limits of Congress' power to regulate
interstate commerce.

Raich, 38, who uses marijuana with her doctor's approval to treat
pain, nausea and seizures associated with a brain tumor and a wasting
syndrome, made a fervent plea at a news conference Monday.

"Medical cannabis has saved my life," she said, but "this case is not
just about medical cannabis. It's about whether or not the federal
government in this country has the right to decide who may live and
who may die."

Raich, disabled since 1995, takes marijuana about every two waking
hours. Her primary physician, Dr. Frank Lucido of Berkeley, told
reporters that Raich needs marijuana to fight off her physical
deterioration.

Monson takes marijuana to combat severe back pain and muscle spasms.
She also has a doctor's recommendation for marijuana, as required by
Prop. 215.

Both women obtained their marijuana locally and without charge --
Raich from two caregivers, Monson from her own garden, at least until
federal agents raided her property in August 2002 and seized her six
plants.

Those raids were part of the Bush administration's escalation of the
federal campaign against California's Prop. 215. The Clinton
administration had also fought Prop. 215, reacting to the 1996 measure
by moving to shut down clubs that had sprung up around the state to
supply marijuana to patients, and by threatening to punish doctors who
recommended the drug.

Monson and Raich now have court orders allowing them to continue using
marijuana as a result of December's appeals court ruling.

The appeals panel ruled 2-1 that the women were not engaged in
interstate commerce, or any kind of commercial activity, and that
prosecuting them under federal drug laws would therefore be
unconstitutional in a state that has legalized the medical use of marijuana.

"The medical marijuana at issue in this case is not intended for, nor
does it enter, the stream of commerce," the court majority said.

The ruling has already had an impact. A federal judge in San Jose has
used i t to prohibit further federal enforcement action against a
Santa Cruz medical marijuana collective that was raided by federal
agents in 2002. Earlier this month, the appeals court ordered judges
to reconsider two other cases in light of the Raich decision, one of
them an attempt by cannabis clubs in Oakland, Ukiah and Fairfax to
resume supplying marijuana to patients.

But the Bush administration's Justice Department argues that the Ninth
Circuit has once again failed to appreciate the power of Congress to
ban illegal drugs.

The appellate ruling "seriously undermines Congress' comprehensive
scheme for the regulation of dangerous drugs," government lawyers
said in papers filed with the Supreme Court.

The Justice Department cited congressional findings that all illicit
drug traffic affects interstate commerce because it increases the
demand for drugs, and because drugs sold across state lines can't
normally be traced to their origin.

Under the appeals court ruling, government lawyers said, those who
want to distribute any illegal drug for free within a state "could
function essentially as unregulated and unsupervised drug
manufacturers and pharmacies." And, they added, by relying on
California's legalization of marijuana for "purported medical
purposes," the appeals court ignored the fact that federal law
considers marijuana to be a dangerous drug with no legitimate use.

Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and
Washington state also have medical marijuana laws, though federal
enforcement efforts have been largely concentrated on California. All
those states except Colorado and Maine are in the Ninth Circuit and
thus were covered by December's ruling.

Medical marijuana advocates put the best face possible on the Supreme
Court's decision to review the case.

"The Supreme Court has a chance to protect the right of patients
everywhere who need medical cannabis to treat their afflictions,"
said Steph Sherer, executive director of Americans for Safe Access.

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