PATIENT KEEPS MEDICAL MARIJUANA FIGHT ALIVE

WASHINGTON -- Angel McClary Raich smokes marijuana every two hours
when she is awake. She makes massage oil and balm from marijuana. And
she bakes her own marijuana-laced brownies, cakes and cookies, which
she eats before going to bed.

"I am a medical cannabis patient because it is a necessity to keep me
from dying," said Raich, a frail 39-year-old Oakland, Calif., mother
of two. "Taking a pill would be much easier and would take less time,
but I simply do not have that option the way most others do."

For the second time in three years, Raich is asking the U.S. Supreme
Court to stop the federal government from cutting off her access to
marijuana, which she uses under a doctor's direction to treat pain,
nausea and seizures associated with an inoperable brain tumor.
Traditional medicines have not brought any relief, she says, and may
worsen her condition.

In 1996, California became the first state in the nation to pass a law
that allows residents to use marijuana for medical purposes. Nine
other states have followed, but the federal government has never
wavered in its opposition to the state measures.

The federal government's view is that Congress passed a law in 1970
strictly regulating the possession and distribution of marijuana.
Because the law, the Controlled Substances Act, made no exception for
medicinal use of marijuana, that should be the end of the matter, the
government contends.

The Supreme Court sided with the government three years ago in an 8-0
decision that was a setback for Raich and other California residents
who depend on marijuana for medical treatments. Now she is back with a
new legal challenge to the government's position.

"I'm doing this because I want to live," she said. The court will hear
arguments in the case Nov. 29.

Diane Monson, another California resident and medical marijuana user,
has joined Raich in bringing the new case.

Analysts agree the case will present the court with difficult issues,
but there is no consensus about the outcome.

"The facts are touching," said former Solicitor General Seth P.
Waxman. "But I can't see this court telling [Attorney General] John
Ashcroft to keep his hands off these women."

Ashcroft has announced his resignation and is not likely to be in
office when the court announces its opinion, probably in the spring.

Kenneth W. Starr, another former solicitor general, said the case will
force the high court to confront the tricky issue of whether state or
federal law should prevail when the two are in conflict. The court in
recent years has shown considerable deference to the states, but Starr
is not sure it will do so in this case.

"This will be a very exotic situation," Starr said. "It's a deeply,
deeply moving human story."

Rob Kampia, executive director of the Marijuana Policy Project, a
group that supports the medicinal use of marijuana, said the facts of
the new case are on Raich's side. "I'd say we have a pretty good shot
at winning."

The court's decision could well turn on whether the justices decide
that Raich's second appeal raises different issues from the first.

Not-for-profit cooperatives sprang up in California after voters
decided to legalize marijuana when a doctor found it medically
necessary. At their peak, the cooperatives were believed to have
thousands of members, including Raich, who patronized a cooperative in
the Oakland area.

The cooperatives were described as a safe and affordable place where
patients could buy good-quality marijuana.

Even though the debate over whether marijuana has any medicinal value
was far from settled, the Supreme Court ruled in May 2001 that
Congress had decided "marijuana has no currently medical accepted use"
and that the 1970 federal legislation contained no medical exception.
The court also indicated it was concerned about the commercial nature
of the cooperatives.

At the time, Ashcroft called the ruling a "victory for enforcement of
our nation's drug laws."

In papers filed with the high court in this year's case, acting
Solicitor General Paul D. Clement returned to the question about
commercial transactions. "Because marijuana trafficking is
quintessentially commercial activity," Congress has the right to
regulate sales and possession of the drug, whether the transactions
occur solely within one state or involve sales across state lines,
Clement said.

The point may be critical because Raich asserts that her new sources
of marijuana - two people known only as John Doe No. 1 and John Doe
No. 2 - do not charge her, thus removing any hint of commercial
activity, and also operate solely within California.

"My caregivers grow my medicine specifically for me," Raich says,
referring to the Does. "They do not charge me, nor do we trade
anything. They grow my medicine and give it to me free of charge."

Clement argues that Congress made no distinction in the 1970 measure
between the commercial distribution of marijuana within one state or
across state lines. He also argues that local manufacture and
distribution of marijuana increases the overall supply and can
stimulate commercial activity. "Local users may ultimately sell or
divert the drug to others," he said in court papers.

A federal district judge in California ruled in the government's favor
in Raich's second case. But last December a three-judge panel of the
U.S. 9th Circuit Court of Appeals reversed the district judge. In a
2-1 decision, the appeals judges said "the cultivation, possession and
use of marijuana for medical purposes and not for exchange or
distribution is not properly characterized as commercial or economic
activity."

Ashcroft promptly asked the Supreme Court to take up the issue again.
Former Solicitor General Theodore B. Olson, who has since returned to
private law practice, said the Justice Department acted because the
appeals court ruling partially invalidates the 1970s legislation and
"substantially undermines" the government's enforcement of federal
drug law.

The government estimates that marijuana traffickers collect at least
$10.5 billion from American users alone, but there is little agreement
among experts about its possible beneficial medicinal uses.

The National Institute of Drug Abuse, an arm of the federal Department
of Health and Human Services, says marijuana use can damage the brain,
heart, lungs and immune system and can lead to drug addiction.

The Institute of Medicine, part of the National Academy of Sciences,
says that marijuana is "potentially effective" in treating pain,
nausea, anorexia, AIDS wasting and other symptoms. The institute has
urged further tests of marijuana's medicinal uses, but cautioned that
potential beneficial effects are undermined by the fact that patients
must inhale "harmful" smoke.

The nine states that have joined California in approving medical uses
of marijuana are Alaska, Colorado, Hawaii, Maine, Montana, Nevada,
Oregon, Vermont and Washington. Kampia, the Marijuana Policy Project
leader, asserts the state actions show growing public support of
medicinal marijuana. Montana, the latest state to join the list, is
conservative but also takes a "leave-us-alone" attitude toward the
government in Washington.

Connecticut passed a law in 1981 making it legal for doctors to
prescribe marijuana for medicinal use, but a conflict with the federal
law makes the state measure unworkable. At least four legislative
efforts to resolve the conflict have failed.

At her home in Oakland, Raich looks at the issue in personal terms.
She uses about 2.5 ounces of marijuana a week. If she loses the
current case, she may have to leave the country, she said, even though
that could separate her from her two teenage children.

"I know I am taking a huge risk by talking publicly about my medical
cannabis use," she said. "I am in no way going to stop using cannabis.
I am fighting to stay alive.