U.S. Supreme Court

MEDICAL USE OF MARIJUANA UNDER REVIEW

Arguments Pit Health, Federal-State Law Issues

WASHINGTON - A lawyer for two women who use marijuana as a painkiller
told the U.S. Supreme Court yesterday that the federal government has
no constitutional authority to outlaw the cultivation of the drug
within a state for medical use.

He urged the justices to uphold a federal appeals court decision
protecting his clients from prosecution for what is a recognized
medical treatment under California law and in 10 other states.

But the Bush administration's top courtroom lawyer countered that the
ban on the possession of marijuana contained in the federal Controlled
Substances Act was a legitimate use of Congress' authority to regulate
interstate commerce. He made the argument even in light of recent
Supreme Court decisions placing limits on that power.

Yesterday's case combined poignant facts - one of the women
challenging the federal law, Angel McCleary Raich, suffers from
several life-threatening conditions including an inoperable brain
tumor - and technical issues about the interplay of state and federal
law.

"This activity is noneconomic and totally intrastate," said Boston
University law professor Randy E. Barnett, who represented Ms. Reich
and Diane Monson, who uses marijuana to ease pain from a degenerative
disease of the spine.

Mr. Barnett added that the enforcement of federal laws against the
medical use of marijuana was "not part of a larger regulatory scheme"
and had only a trivial impact on the illegal marijuana trade.

"We are talking about a small number of people," Mr. Barnett
said.

But acting U.S. Solicitor General Paul D. Clement told the court that
"any little island of lawful possession [of marijuana] poses a real
challenge to Congress' regulatory regime," and several justices agreed.

"There is an enormous common market" in marijuana, Justice Anthony
Kennedy told Mr. Barnett. "The simple possession of that commodity is
participation in that market."

Justice David Souter, noting that as many as 100,000 patients in
California might want to use marijuana for medical purposes, said:
"The sensible assumption is that they're going to get it on the street."

When Mr. Barnett protested that ill people would have no incentive to
obtain marijuana "on the street," Justice Souter responded: "If I'm
sick, I'll say, 'They don't prosecute kids for [purchasing] marijuana.
Why would they prosecute me?'

Yesterday's arguments focused less on whether smoking marijuana offers
unique medical benefits - for example, in the alleviation of the side
effects of chemotherapy - than on whether Congress and the Food and
Drug Administration have the authority to override state decisions to
the contrary.

"I don't know if it's true that medical marijuana is helpful to people
in a way that pills are not," Justice Stephen Breyer told Mr. Barnett,
"but if your clients take that position they can go to the FDA, and if
they lose they can go to [federal] court and claim an abuse of
discretion by the agency."

Referring to the fact that medical marijuana was legalized by
California's voters, Justice Breyer added: "Medicine by regulation is
better than medicine by referendum."

Much of the interest in this case among lawyers stems from the dilemma
it seems to pose for conservative justices who in recent years have
placed limits on Congress' power under the Constitution's Commerce
Clause.

For example, in 1995 a majority consisting of Justice Kennedy, Chief
Justice William Rehnquist, and Justices Antonin Scalia, Sandra Day
O'Connor, and Clarence Thomas struck down an act of Congress that made
it a crime to possess a gun on school property.

In the majority opinion in that case, Chief Justice Rehnquist had said
that the gun law "neither regulates a commercial activity nor contains
a requirement that the possession be connected in any way to
interstate commerce."

But yesterday two members of the majority in the gun case - Justices
Scalia and Kennedy - indicated that they thought the constitutionality
of the Controlled Substances Act should be governed instead by a 1942
precedent, Wickard vs. Filburn.

In that case, the court upheld a federal quota system for wheat
farmers even if the wheat were grown for home use, reasoning that
purely in-state cultivation could still affect the national market.

"This sounds like Wickard to me" Justice Scalia said.

Mr. Barnett received some encouragement from Justice O'Connor, who
pressed the solicitor general about how he could distinguish this case
from the court's recent federalism decisions.

Justice Thomas, who as usual did not ask questions yesterday, is a
strong proponent of state's rights who mentioned the 1942 decision in
an opinion lamenting that "our case law has drifted far from the
original understanding of the Commerce Clause."

If Justices O'Connor and Thomas voted to affirm the ruling of the 9th
U.S. Circuit Court of Appeals and were joined by Chief Justice
Rehnquist, who will participate in deciding the case despite his
absence yesterday because of illness, and Justices John Paul Stevens
and Ruth Bader Ginsburg, there would be a 5-4 vote against the U.S.
government's position.

Yesterday Justices Stevens and Ginsburg seemed open to Mr. Barnett's
argument that the intrastate growth of marijuana for medicinal use was
a special case.

Justice Ginsburg noted that "nobody's buying anything - nobody's
selling anything."

Chief Justice Rehnquist, however, may be less sympathetic. He cited
the 1942 decision in his majority opinion striking down the federal
law against the possession of guns in schools.

Unlike the possession of a firearm, he wrote, the cultivation of wheat
involved "economic activity" - and he might well say the same about
the cultivation of marijuana.

Before yesterday's argument, the court issued orders in several cases
including a refusal to hear a challenge to the ruling by
Massachusetts' highest court that same-sex couples were entitled to
the legal benefits of marriage.

That decision was grounded in the language of the Massachusetts state
constitution.

But gay-marriage opponents had asked for review by the U.S. Supreme
Court on the grounds that, by taking the decision on same-sex unions
away from the legislature, the Supreme Judicial Court of Massachusetts
had violated Article IV of the U.S. Constitution, which guarantees
every state "a republican form of government."