Liberty is the biggest loser in the nation's war on drugs

by Michelle Malkin
Seattle Times editorial columnist

Go ahead, all you toughoncrime czars running loose across the republic
give yourselves a hearty totalitarian slap on the back. Your $17
billionayear War on Drugs has triumphantly claimed another casualty. No,
it's not a Colombian drug lord or innercity crack dealer, but a terminally
ill Tacoma man seeking the freedom to smoke marijuana for pain relief
without fear of policestate retribution.

In an 81 decision last week, the Washington state Supreme Court rejected
bone cancer patient Ralph Seeley's claim to a constitutionally protected
interest in having his doctor Ernest Conrad, an orthopedic physician
prescribe marijuana for medical treatment.

Dr. Conrad, also director of musculoskeletal oncology at the University of
Washington School of Medicine, testified, "If I could prescribe marijuana
for him, I would." Washington law allows doctors to prescribe harder illicit
drugs including cocaine, PCP, opium and morphine. But the court upheld the
state's law banning the use or prescription of leaf marijuana for any
purpose, no matter how efficacious it may be for a given individual.

While the court majority cited numerous cases to justify its view that
Seeley had no constitutional right to choose his preferred medical
treatment, the justices ignored two key U.S. Supreme Court cases Roe v.
Wade and Planned Parenthood v. Casey that guarantee individuals the
constitutionally protected right to a private medical decision, namely abortion

Like the high court's recent ruling rejecting a right to physicianassisted
suicide, the state Supreme Court's ruling rejecting Seeley's right to
physicianprescribed marijuana perpetuates a disturbing legal incongruity:
How can terminating a fetus be more fundamental to personal dignity and
autonomy than terminating one's own pain?

The court majority said Seeley failed to cite proper "authority supporting
his assertion that the right to access an unapproved, controlled substance
as treatment for a medical condition is an `important right.' "

It's hard to imagine what legitimate authority the court would have
accepted barring divine intervention. Seeley's own personal experience
left vomiting uncontrollably in his hospital bed after chemotherapy, often
covered in his own excrement, and unable to tolerate narcotic painkillers
was not deemed "authoritative" enough to prove the importance of one's
rights to individual autonomy and physician treatment.

The court majority declined to interfere with the Legislature's absolute
prohibition on medical marijuana, citing a larger governmental interest in
maintaining "an interlocking trellis of federal and state law to enable
government at all levels to control more effectively the drug abuse
problem." Better to preserve this "national scheme" of uniformly rigid drug
laws, the court found, than to grant a dying man hisnonimportant claim to
freedom from excruciating pain. A decision favoring Seeley, after all, might
muss up that neat legal trellis constructed with billions of tax dollars
and, heavens, we wouldn't want that.

The court's unwillingness to intervene in this matter is a cruel abdication
given its long history of overturning laws deemed unduly oppressive to
individuals. As Justice Richard Sanders, the lone dissenter on the bench,
noted: "Our court has previously invalidated state and local legislative
acts on precisely this ground . . . I doubt many individuals would require
Mr. Seeley to suffer extreme nausea in lieu of the relief he could obtain
from a marijuana cigarette. But it seems the government is endowed with
neither the compassion nor mercy possessed by the ordinary citizen."

Nor common sense. The nation's war on drugs far from providing the
effective controls credited it by the majority in Seeley v. State of
Washington has been a dismal, costly, inefficient failure. Over the past
decade, spending on the antidrug crusade has risen from $5 billion to $17
billion a year. Drug traffickers and dealers are thriving, raking in an
estimated $150 billion a year; meanwhile, nearly half of the 1.6 million
Americans in jail today are there for nonviolent drug offenses.

They are folks like Martin Martinez, a Seattle crash victim with
debilitating nerve pain who was arrested last year for growing medicinal
marijuana, and Norm Major, a Eugene, Ore., cancer patient who started taking
marijuana on the advice of several doctors and was arrested in May for
growing the plant in his basement.

The state Supreme Court passed an opportunity to halt the damage, stem the
waste, and extend fundamental protections to the drug war's unintended
victims. But the voters of Washington may get a chance in November to
declare war on the failed war on drugs if an initiative sponsored by Tacoma
doctor Rob Killian, which would allow doctors to recommend marijuana and
other illegal drugs to seriously ill patients, qualifies for the ballot this
summer.

Until then, drug war generals and foot soldiers are countering attacks with
a wrenching plea: What kind of message are we sending our children? Funny.
That's exactly my sentiment as I think of Ralph Seeley and the inhumane
sacrifice of painfree life and personal liberty he must now make for the
Nanny State's more important pursuit of the Greater Good.