MEDICINAL USE OF MARIJUANA DEALT SETBACK

Supreme Court Upholds Federal Prosecutions; Medical Merits Not Considered

The Supreme Court ruled yesterday that federal agents can prosecute
individuals who use marijuana to ease medical problems, even in the
handful of states where voters or lawmakers have carved out an
exception in local drug laws.

Without judging the possible medical merits, the court in a 6-3 ruling
rejected the claims of two seriously ill California women who said
federal authorities should be barred from enforcing U.S. drug laws in
cases where marijuana is used solely for medical reasons and allowed
under state law.

"This case is made difficult by [the women's] strong arguments that
they will suffer irreparable harm," Justice John Paul Stevens wrote
for the majority. But he called the 35-year-old Controlled Substance
Act, which outlaws marijuana and other drugs, "a valid exercise of
federal power, even as applied to the troubling facts of this case."

The decision was a defeat to the unlikeliest of allies - advocates who
support looser marijuana laws and conservatives who oppose federal
meddling in states' rights.

For medical marijuana users, the growers who supply their drug and the
doctors who prescribe it, the decision could have a chilling effect.
The court did not overturn laws in California and 10 other states that
allow medical use of marijuana but made it clear that local statutes
cannot prevent federal prosecution.

"I would like to be able to follow the law, and because the law is
unjust, I am going to continue this fight," said Angel Raich, one of
the California women who brought the case against the government.
Raich, 39, who smokes marijuana every two hours to control pain from a
number of ailments, including an inoperable brain tumor, said she was
using marijuana yesterday morning when she learned about the ruling.

Blow to States' Rights

More broadly, some conservatives viewed the decision as a blow to
states' rights and a personal setback for Chief Justice William H.
Rehnquist, who in recent years has led the court's repeated challenges
to Washington's centralized authority by striking down other
congressional acts it viewed as intruding on what should be the realm
of state governments.

Rehnquist, who was undergoing cancer treatments when the case was
argued in November, was in the minority yesterday with Justices Sandra
Day O'Connor and Clarence Thomas. They called the majority opinion
"overreaching [that] stifles an express choice by some states."

Mark Moller, a senior fellow with the conservative Cato Institute,
said that even as the ruling slowed the Rehnquist-led federalism
revolution, it was unlikely to end tensions between local and federal
authorities over drug prosecutions.

U.S. agents typically pursue only large-scale marijuana cases, leaving
smaller possession cases under the jurisdiction of state and local
laws. Steve Fox, government relations director for the Marijuana
Policy Project, said one concern is that the Justice Department will
now police medical marijuana users more aggressively.

"It's truly a concern," Fox said yesterday. "The Bush administration
may feel that it needs to show California who's boss and take some
kind of action."

In Oregon, where about 10,000 patients are registered in the state's
6-year-old medical marijuana program, officials stopped issuing new
medical cards yesterday while they sought legal guidance on how the
decision could affect state law. Current members of the program were
told they could withdraw.

"We need to proceed cautiously until we understand the ramifications
of this ruling," said Oregon's public health officer, Dr. Grant Higginson.

Law enforcement officials did not signal their intentions yesterday,
though federal authorities have been willing to pursue medical
marijuana cases. Raich and Diane Monson brought their lawsuit against
then-Attorney General John Ashcroft and Asa Hutchinson, then-head of
the Drug Enforcement Administration, in 2002 after a strange,
three-hour standoff between federal agents and local authorities at
Monson's home in Butte County, Calif.

It ended without criminal charges, but with DEA agents cutting down
the six marijuana plants growing on Monson's property - over the
objections of the local district attorney. Monson, who suffers from
chronic back pain, stood nearby, reading aloud the text of
California's so-called Compassionate Use Act.

Federal Reaction

Justice Department spokesman John Nowacki said yesterday that the
agency was pleased that the court had upheld federal drug laws. The
head of President Bush's drug policy office welcomed the ruling and
said there is no scientific proof that "smoking a crude plant is safe
or effective" medicine.

"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. He said the court's decision
"marks the end of medical marijuana as a political issue."

That is unlikely to be the case, though. The court in its own decision
noted that one avenue of appeal left for the California women is "the
democratic process, in which the voices of the voters allied with
these [two women] may one day be heard in the halls of Congress."

Fox said advocates will press lawmakers in Washington this month to
block the Justice Department from using federal tax dollars to
prosecute the medical use of marijuana. Similar efforts in recent
years have fallen well short of the votes needed for passage.

Advocates for medical use of marijuana have seen steady gains at the
state level, however, and the three justices who dissented yesterday
said the court's ruling threatens the rights of individual states to
make their own choices about drug policy.

"This case exemplifies the roles of states as laboratories," O'Connor
wrote in the dissenting opinion joined by Rehnquist and Thomas. While
saying she did not personally support California's medical marijuana
law, O'Connor said the court should respect the state's "own
conclusions about the difficult and sensitive question of whether
marijuana should be available to relieve pain and suffering."

In a separate dissent, Thomas offered a sterner rebuke of the majority
decision.

"Diane Monson and Angel Raich use marijuana that has never been bought
or sold, that has never crossed state lines, and that has no
demonstrable effect on the national market for marijuana," Thomas
wrote. "If Congress can regulate this under the commerce clause, then
it can regulate virtually anything - and the federal government is no
longer one of limited and enumerated powers."

The question before the court was not whether marijuana, classified by
the federal government as a Schedule I narcotic, should be considered
legitimate medicine. Instead, the justices had to weigh whether
marijuana grown and processed within a single state - and for which no
money changes hands - should be subject to the commerce clause of the
U.S. Constitution, which regulates interstate trade.

The Majority Opinion

For guidance, the majority of the court looked to a 1942 case in which
the high court held that a farmer who grew wheat strictly for his
family's consumption still would be subject to federal production
controls on the theory of a single, national market.

"To be sure, the wheat market is a lawful market that Congress sought
to protect and stabilize, whereas the marijuana market is an unlawful
market that Congress sought to eradicate," Stevens wrote in a
footnote. "This difference, however, is of no constitutional import."

Surprising some supporters of states' rights, conservative Justice
Antonin Scalia cast his vote with the majority. Scalia, who generally
abhors federal intervention in state laws, wrote in a concurring
opinion that there should not be a loophole for medical use of
marijuana in the nation's drug laws.

"Marijuana that is grown at home and possessed for personal use is
never more than an instant from the interstate market - and this is so
whether or not the possession is for medicinal use or lawful use under
the laws of a particular state," Scalia wrote.

Randy Barnett, a Boston University law professor and former Cook
County, Ill., prosecutor who argued Raich and Monson's case before the
Supreme Court, said he was disappointed by Scalia's position but noted
that it did not change the outcome.

Barnett said the case will not end with yesterday's decision. He plans
to return to the San Francisco-based 9th Circuit Court of Appeals,
which sided with Raich and Monson, to argue that the women have a due
process right to live free of pain and suffering and free of
government intrusion.

Raich said she would continue to fight for more lenient laws on
medical use of marijuana as long as "I still have some breath left in
my body."

"I, unfortunately, do not have a choice but to continue using cannabis
as a medicine," she said. "Because if I were to stop using cannabis, I
would die."