THE SUPREME COURT'S RULING ON MEDICAL MARIJUANA IS A 'CHALLENGE' TO
ACTIVISTS AND CONGRESS

Across the country on Monday, newspapers and websites described how
the U.S. Supreme Court dealt medical marijuana advocates a "stinging
defeat" (MSNBC.com), "a blow" (Washington Post), and a "setback"
(Baltimore Sun) in the decision handed down in the case Gonzales v.
Raich. True, Angel Raich and co-defendant Diane Monson, both members
of a Santa Cruz medical marijuana co-op that was operating legally
under California's 1996 Compassionate Use Act, may now be subject to
federal drug charges. But the reality is: They always were.

In fact, leading pot activists and their legal experts agree that
Monday's ruling changes little in the medical marijuana wars, and that
the decision written by liberal Justice John Paul Stevens may have
even given the movement a tiny boost by both acknowledging the medical
benefits of pot and exhorting advocates to redouble their efforts to
change the laws in Congress.

"The Raich decision is irrelevant, doesn't overturn [California's
Compassionate Use Act] or SB 420 [medical marijuana implementation
law] or anything," says Hilary McQuie of Americans for Safe Access, an
advocacy group. "Attorney General Bill Lockyer has just put out a very
strong statement to that effect. We want to get that out so we don't
have local law enforcement going around thinking they can just shut
people down and arrest people now. Because 99 percent of the arrests
for marijuana are state and local. The one percent that is federal is
still at risk, as it always was."

Under the federal Controlled Substances Act, marijuana remains a
Schedule I narcotic, meaning it has no medical usage and cannot be
prescribed by doctors. This categorization has been at odds with state
and local laws around the country since the early '90s.

"This doesn't do anything to the existing state medical marijuana
laws," says Krissy Oechslin, spokesperson for the Marijuana Policy
Project (MPP) in Washington, D.C. "It doesn't impede other states from
passing medical marijuana laws. A week ago, the feds could go in and
arrest people for medical marijuana, and they can do it today. So this
ruling doesn't give the feds any extra power; it simply restates the
status quo."

Monson and Raich sued then-U.S. Attorney General John Ashcroft after
federal agents raided Monson's home in Butte County, California in
2002 and destroyed plants used legally under state law by both women.
In a landmark decision on December 16, 2003, the U.S. 9th Circuit
Court of Appeals ruled in favor of Raich, with Judge Harry Pregerson
writing that "this limited use is clearly distinct from the broader
illicit market," and that the feds had no authority to police it under
the Constitution's Commerce Clause.

For almost 18 months, then, pot patients in California -- indeed, the
entire 9th Circuit -- was free from DEA prosecution for the first time
since marijuana became illegal nationwide in 1937. That brief reprieve
ended Monday.

The Bush administration, for its part, is claiming victory. "Smoking
illegal drugs may make some people 'feel better'; however, civilized
societies and modern-day medical practices differentiate between
inebriation and the safe, supervised delivery of proven medicine by
legitimate doctors," said National Drug Control Policy Director John
Walters in a statement. The decision, he said, "marks the end of
medical marijuana as a political issue."

That, it seems, is wishful thinking. Rather, this ruling is likely to
fuel a flurry of new activity around the issue. The court's 6-3
ruling, with staunch states' rights advocates Clarence Thomas, Chief
Justice William Rehnquist, and Sandra Day O'Connor noting in their
dissent that prosecuting these patients represents "overreaching" by
the federal government, was narrowly written to only address arguments
regarding the Commerce Clause. The majority opinion held that Congress
had the authority to regulate homegrown bud because even not selling
it "may have a substantial impact on the interstate market for this
extraordinarily popular substance." In the knotted logic of
Constitutional law, then, not selling pot made it illegal.

The case brought out such twists on both sides. While the decision
looks like a simple victory for the "War on Drugs," the court's
liberal bloc -- Justices Stevens, Ruth Bader Ginsberg, Stephen G.
Breyer, and David H. Souter -- would historically support a broad
interpretation of the Commerce Clause as part of expansive federal
powers.

The ruling, however, expressly avoided ruling on whether or not there
is a medical necessity defense for using pot -- they kicked that one
back to the 9th Circuit -- nor did it address due process problems
that arise from the federal-state clash. Raich and her lawyers said in
a press conference that she'd push forward with these appeals -- and
continue smoking pot.

But there will be fallout from the Supreme Court's decision. According
to Americans for Safe Access, 31 federal cases were on hold awaiting
the results of Raich in California alone, and it is unclear exactly
how this ruling will affect them.

Bryan Epis, for example, may go back to jail. Epis was arrested in
1997 by federal agents for growing marijuana in his house in Chico,
which he claimed was for him and four other patients with
prescriptions that were legal under California's Compassionate Use
Act. He became the first California medical marijuana patient
convicted under federal law, and in August 2002, he received a
mandatory minimum sentence of 10 years. He was released pending
appeal, however, in August 2004, partly because the Raich ruling in
the 9th Circuit made his conviction unconstitutional.

Now, however, his case and others are thrown into doubt. As to new
prosecutions, U.S. Drug Enforcement Administration head Karen Tandy
has said in several interviews that her agents would not target sick
pot-smokers now, just because they could.

MPP's Oechslin almost wishes they would. "Of course, we don't want
anyone to be arrested, raided, or prosecuted. But if they want to use
their resources arresting people in wheelchairs, it only helps our
side."

Next week, she points out, there will be another vote on an amendment
to the annual Justice Department funding bill, and she hopes Congress
will see that only they can address this problem. Called the
Farr-Rohrabacher Amendment for its sponsors Representatives Sam Farr
(D-CA) and Dana Rohrabacher (R-CA), the amendment would prohibit the
department from spending federal dollars busting pot patients in
states where such prescriptions are legal. Last year, it was defeated
268 to 148.

"We only need 218 votes to win," says Oechslin. "I'd love to see this
decision push us over and win that amendment."

Americans for Safe Access attorney Joe Elford points out that the
Supreme Court decision, in both its majority and minority opinions in
Raich, is essentially an exhortation to further action by activists
and patients. "[Justice Stevens] starts by actually recognizing that
it's a very troubling case, because marijuana does in fact have
therapeutic value, and also questions the wisdom of enforcing the
marijuana laws under these circumstances," says Elford. "He concludes
by noting the possibility of democratic change, and he actually
mentions 'voices of voters allied with [Raich and Monson] may one day
be heard in the halls of Congress,' and having these laws changed. So
I think it's a challenge by the Supreme Court to become more active."

Elford also notes that one of this country's longstanding
constitutional traditions is that such democratic change is made
through experimentation in state law, and that this is exactly how
Justice O'Connor begins her dissenting opinion. "So California and the
nine other states that have medical marijuana can either prove the
wisdom or the foolishness of medical marijuana laws," Elford adds. "We
feel that the longer they're in place, the more wise they'll prove to
be. In time, the laws will change."