MARIJUANA! SUPREME COURT JUST SAYS NO

Now How Can You Relieve Pain?

The Supreme Court's liberal bloc--Stevens, Ginsburg, Souter and
Breyer--ensured Monday with the support of Justices Kennedy and Scalia
that people sick from cancer treatment will have to think first about
a house call from the federal drug police before using marijuana to
relieve their symptoms. Even the Court's language was unfeeling: "The
case comes down to the claim that a locally cultivated product that is
used domestically rather than sold on the open market is not subject
to federal regulation. Given the. . . undisputed magnitude of the
commercial market for marijuana, Wickard and its progeny foreclose
that claim."

Liberalism to cancer patients: Drop dead.

Meanwhile, dissents on behalf of medical marijuana were written by
Sandra Day O'Connor, a cancer survivor, and Clarence Thomas, whose
nomination was fought by recreational pot users.

Medical marijuana sounds simple. Cancer patients receiving
chemotherapy often endure extreme nausea, and many say that smoking
marijuana during chemo makes it bearable. Many of us know sober folks
who have done this. So why is this a Supreme Court case? Because this
is America, where nothing is so simple that it can't be turned into a
federal case.

If the Court's four liberals had ruled in favor of state laws allowing
medical marijuana, which federal law forbids, that precedent would
have helped conservative efforts to reduce federal clout in other
areas, such as environmental authority in the West. Thus Justice
Stevens wrote that the Controlled Substances Act, a Nixon-era law, "is
a valid exercise of federal power, even as applied to the troubling
facts of this case." Liberals with cancer should take solace in
knowing they will be vomiting to save the snail darter.

In his dissent, Justice Thomas, liberalism's archfiend, noted: "The
majority prevents states like California from devising drug policies
that they have concluded provide much-needed respite to the seriously
ill." And: "Our federalist system, properly understood, allows
California and a growing number of other states to decide for themselves
how to safeguard the health and welfare of their citizens."

This is an abstruse but important legal debate about the Commerce
Clause and federal legal power in the 21st century. Liberals, if they
wanted to, could recognize that letting the states take the lead on
controversial issues involving behavior among consenting adults--both
personal and commercial--might abet their beliefs in this day and age.
But they won't. Thus friends sick with cancer must choke down this
decision.

Not all cancer patients are interested in the Hundred Years War
underway between conservatives and liberals. They probably think
common sense should allow Justice Thomas's "much-needed respite." The
usual tangle of public policy makes that difficult.

American medicine isn't adept at pain management. Writing in the New
England Journal of Medicine, Drs. Jane Ballantyne and Jianren Mao
said: "The recognition that opioid therapy [such as morphine] can
relieve pain and improve mood and functioning in many patients with
chronic pain has led experts on pain to recommend that such patients
not be denied opioids. Despite this recommendation, many physicians
remain uncertain about prescribing opioids to treat chronic pain and
do not prescribe them." They conclude even this article, however, by
urging doctors to resist patients' pressure to greatly increase opioid
dosage.

Medical disagreement or confusion about pain treatment is only the
start. Doctors with cancer patients also may have visited the Web site
of the U.S. Drug Enforcement Administration--the aggressive federal
cops. Beneath an image of a DEA police badge, one finds an article:
"Exposing the Myth of Smoked Medical Marijuana."

Studies of physician fear of prosecution have been done, which
conclude that prosecutions of honest doctors prescribing such
pain-killers are rare. That point was made in news articles the day
after the medical marijuana decision. Late last year, I accompanied a
patient with extreme spinal pain to the office of a pain specialist
whose first words were that if the subject was opiate-based therapy,
we should leave. End of conversation.

To address this concern, Congress several years ago took up the Pain
Relief Promotion Act. It collapsed amid the controversy over
physician-assisted suicide. Most docs already believe that the U.S.
system of justice is irrational, and if patients have to share the
pain, so to speak, that's too bad.

Once-in-a-lifetime users of medical marijuana are also collateral
damage in the war on drugs. Writing for the majority, Justice Stevens
said, with approval: "Congress was particularly concerned [in 1970]
with the need to prevent the diversion of drugs from legitimate to
illicit channels." Some argue, including proponents of drug
legalization, that a Supreme Court imprimatur for medical marijuana
would have no relevance to campaigns to legalize recreational use of
this and other drugs. I don't believe that. There isn't much
self-restraint in our activist politics.

What now? My guess is 99.99% of medical marijuana users won't get
prosecuted. Society's disapproval of marijuana stays in place, but
patients get their drug. Live and let live. Benevolent hypocrisy comes
in handy in a free country when public politics, as now, often makes
sensible solutions impossible.

A note to the 50 million or so readers who pointed out that last
week's column on Michael Jackson's odd world misattributed the
authorship of Bob Dylan's song "All Along the Watchtower" to Jimi
Hendrix ("There's too much confusion. . ."). I don't "regret" the
mistake. I'm appalled by it. I wish I could explain this sacrilegious
error by saying I was heavily sedated with medical marijuana. The
reality is I have listened to Hendrix about 500 times more than I've
listened to Dylan; this alone may have caused a neurological
deficit--and misplaced cultural allegiance. Jimi Hendrix died at 28 of
overindulging in what the culture then had on offer; Mr. Dylan writes
and plays on at 64, suggesting that he recognized "confusion" when he
saw it in 1968.