HIGH COURT NOT RECEPTIVE TO MARIJUANA CASE

Medical Use Seen As Subject To Regulations

Advocates of medical marijuana received a mostly skeptical reception from
the Supreme Court yesterday as the court heard oral arguments in a case
that will decide whether the federal government can still ban possession of
the drug in states that have cut or eliminated sanctions for using it to
treat symptoms of illness.

At issue is the small, homegrown quantity of marijuana used by two Northern
California women at the recommendation of their doctors, as permitted by
California's Compassionate Use Act, which was adopted by an overwhelming
majority of voters in 1996.

But a majority of the justices made comments suggesting they thought that
even small amounts of ostensibly medical marijuana, obtained for free, were
part of a national market for licit and illicit drugs -- and thus subject
to Congress's constitutional power over trade among the states.

"Medicine by regulation is better than medicine by referendum," Justice
Stephen G. Breyer remarked at one point. "I have to take this case on the
assumption that there is no such thing as medical marijuana that is special
and beneficial."

"Cannabis does have a substantial medical effect," replied Randy E.
Barnett, a law professor representing the two women, Angel McClary Raich
and Diane Monson. He conceded that it has "ancillary effects" that may
cause harm, but said that "when people are suffering and dying, they are
willing to run risks."

At that point, Justice Anthony M. Kennedy intervened, eliciting from
Barnett the concession that California's law does not apply only to
life-threatening illnesses such as AIDS or cancer.

Monson, for example, was prescribed marijuana for lower back pain; Raich
received hers for a variety of chronic conditions.

Monson's home was raided and her marijuana plants seized by federal agents
in 2002; Raich says she receives free pot from caregivers and joined
Monson's suit because of her fear that her marijuana could be seized.
Raich's suppliers are also in the case, as John Does One and Two.

Monson and Raich say the federal government's crackdown on medical
marijuana in California, which began under President Bill Clinton and
continues under the Bush administration, is unconstitutional as it applies
to them because their cultivation and use of the substance is a noneconomic
activity that takes place in one state.

Their argument relies heavily on two Supreme Court cases within the past 10
years, in which the court limited Congress's power to make laws in the name
of regulating interstate commerce.

The court ruled in 1995 that Congress could not criminalize the possession
of guns near schools; in 2000, the court said Congress lacked the authority
to give rape victims the right to sue their attackers in federal court. The
court said the link between school gun violence or rape -- both of which
are already illegal under state law -- and the national economy was too
attenuated.

The strongest voice on the court in favor of Monson and Raich belonged to
Justice Sandra Day O'Connor, who challenged acting Solicitor General Paul
D. Clement to show how the use of federal power in this case was better
justified than it was in the 1995 and 2000 cases.

"Did not the court say Congress can't use a long 'but-for' chain of
causation? Did the court not make that statement, and does it not cut
against what you are saying?" O'Connor asked.

Clement answered that federal enforcement of federal marijuana laws is an
essential part of a larger regulatory scheme involving drugs and health
care, and as such constitutional under the court's precedent.

The case is Ashcroft v. Raich, No. 03-1454. A decision is expected by July.