MEDICINE OR MENACE?

SUPREME COURT SHOULD LET STATES REGULATE POT

Pop quiz: Which of the following drugs have federally approved medical
uses, yet are highly addictive and can be lethal in an overdose?

A. Morphine

B. Cocaine

C. Marijuana.

Answer: A and B.

A zero-tolerance Congress declared war on Woodstock Nation in 1970 by
classifying marijuana as a Schedule 1 drug, devoid of medical value and
illegal in all uses. Thirty-four years later, despite the passage of laws
in Oregon and 10 other states allowing doctors to prescribe marijuana for
certain conditions, federal Drug Enforcement Administration agents are
still sledgehammering law-abiding cancer patients' front doors in order to
confiscate their pot.

Now, the U.S. Supreme Court has an opportunity to create a common-sense
antidote for that reefer madness. The court should reject the Justice
Department's hyperbolic argument that medical marijuana laws undermine the
entire federal drug enforcement effort and affirm the long-standing
principle that states have the right to regulate the practice of medicine.

Unfortunately, the practice of medicine and the relief of patients'
suffering could have little to do with the court's ultimate decision. The
California case currently before the high court could turn on legal
hair-splitting about whether the commerce clause in the Constitution gives
the federal government the right to ignore state drug laws.

Forget the Institute of Medicine's 1999 study that said "For patients such
as those with AIDS or who are undergoing chemotherapy, and who suffer
simultaneously from severe pain, nausea, and appetite loss, cannabinoid
drugs might offer broad-spectrum relief not found in any other single
medication."

Instead, the justices are likely to spend more time analyzing how closely
the California case matches facts presented in a 1942 trial involving a
wheat farmer that is considered the classic commerce clause opinion.

That could be bad news for the plaintiffs in the California case - Angel
Raich, an Oakland mother of two who used marijuana as a last resort to ease
the constant pain of a brain tumor, and Diane Monson of Oroville, who used
cannabis to help her stay mobile despite a degenerative spinal disease.

It would be difficult to find a more sympathetic plaintiff than Raich,
whose inoperable brain tumor causes seizures and makes it hard for her to
maintain a healthy weight. In a detailed affidavit enumerating a staggering
list of painful diseases, Raich's doctor testified that she had tried 35
alternative medicines without success. If she is forced to stop using the
marijuana she consumes every two hours, she "may suffer rapid death," her
doctor said.

Raich and her co-plaintiff sued to block Attorney General John Ashcroft
from prosecuting them for federal drug law violations. They argued that the
commerce clause doesn't apply to their case because they grew their own
marijuana within the state and no money ever changed hands.

That's a strong argument, and it's one that applies in Oregon, as well.
Oregon's 1998 Medical Marijuana Act allows patients with doctor-approved
medical cards to grow their own marijuana or to have caregivers grow it if
the patients cannot. The law, which passed by more than 100,000 votes, does
not allow marijuana to be bought or sold.

Justice Stephen Breyer correctly noted during oral arguments that Congress
or the Food and Drug Administration were better venues than the courts to
craft national drug policy. But legislation easing federal drug laws is a
guaranteed nonstarter in a "tough on crime" Republican Congress and
administration.

There is ample legal ammunition in the California case for a conservative
Supreme Court to uphold a conservative interpretation of the commerce
clause. Doing so will preserve the rights of individual states, such as
Oregon, to act on behalf of their citizens when Congress will not.