MAKING SENSE OF MARIJUANA - WELL, SORT OF

The restless ghost of Roscoe Filburn has returned. A good thing, too.

Filburn was the spunky Ohio farmer who challenged the U.S. government
in a famous case 60 years ago. Now, his case figures in the plea of
two seriously ill California women. They have sued for the right to
obtain marijuana on a doctor's recommendation. Filburn lost, but the
women, so far, are winning.

The plaintiffs are Angel McClary Raich and Diane Monson. Two years
ago, they brought suit against Attorney General John Ashcroft, seeking
an injunction to forestall their prosecution under the federal
Controlled Substances Act. The act defines marijuana as a Schedule One
substance with a "high potential for abuse." Congress has found that
marijuana has "a substantial and detrimental effect on the health and
general welfare of the American people." Moreover, "it has no
currently acceptable medical use." So says Congress.

The experience of the two women is to the contrary.

Raich suffers from an inoperable brain tumor. She has tried 35
approved medications for relief of seizures and constant pain. None of
them has worked, but marijuana has been a godsend. Two friends have
grown cannabis for her without charge. They use "only soil, water,
nutrients, growing equipment, supplies and lumber originating from or
manufactured in California."

Monson suffers from severe chronic back pain and recurring muscle
spasms. Traditional medications "have utterly failed." Desperate for
relief, she began growing marijuana solely for her own use. In August
2002, the sheriff of Butte County, joined by federal agents, raided
her home. They seized and destroyed her six plants but have not filed
criminal charges against her.

In 1996, California adopted its Compassionate Use Act.

The law ensures that seriously ill Californians have a right to obtain
and use marijuana for medical purposes on the recommendation of a
physician. Coverage is broad. The law applies to cancer, anorexia,
AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, "or any
other illness for which marijuana provides relief."

Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and
Washington have adopted similar laws on medical use.

In U.S. District Court, Judge Martin J. Jenkins denied the two women's
petition for a preliminary injunction. They appealed to a three-judge
panel of the 9th Circuit. Judge Harry Pregerson, joined by Judge
Richard A. Paez, came down emphatically on their side.

To be sure, Pregerson acknowledged, in at least six cases in recent
years, the 9th Circuit has supported the government's reliance on the
Controlled Substances Act. But the women's case, he noted, is
significantly different in kind. Other defendants were charged with
involvement in the national traffic in drugs. The women's supposed
offense rested in the intrastate, noncommercial cultivation and
possession of cannabis for medical purposes. The marijuana at issue in
this case "is not intended for, nor does it enter, the stream of
commerce." The case does not raise the same policy concerns that go
with the market in illicit drugs.

Judge C. Arlen Beam, of the 8th Circuit, sitting by designation,
dissented. And here we get back to Roscoe Filburn on his small farm in
Montgomery County, Ohio, 60 years ago. Filburn had been given a wheat
marketing quota based on 11.1 acres. Instead, he harvested wheat,
entirely for his own family purposes, from 23 acres. None of the wheat
was ever in interstate commerce, but a unanimous Supreme Court ruled
that Filburn's 239 bushels contributed inexorably to the national
aggregate of wheat harvested in 1941.

Said Judge Beam: "It is simply impossible to distinguish the relevant
conduct surrounding the cultivation and use of the marijuana crop at
issue in this case from the cultivation and use of the wheat crop in
Filburn."

He added, "If Congress cannot reach individual narcotic growers,
possessors and users, its overall statutory scheme will be totally
undermined." He regretted a result that might seem "unduly harsh"
for seriously ill persons, but he could find no distinction as a
matter of law.

I thought the Supreme Court was wrong - unanimously wrong - in ruling
against Roscoe Filburn in 1942. I believe Judge Pregerson is right -
clearly right - in holding that the growing and use of a plant for
clearly medical, personal, noncommercial purposes is beyond the reach
of Congress under the Commerce Clause.

I hope Attorney General Ashcroft will drop the case and let the two
plaintiffs go literally to pot.