November 27, 2004

Top Court to Tackle Medical Marijuana and Assisted Suicide

May a doctor in California lawfully prescribe marijuana for a seriously ill patient? May a doctor in Oregon lawfully help a terminal patient to commit suicide?

Stand by. The Supreme Court will hear argument in the California case on Monday. The Oregon case is waiting in the wings on a petition for review. Both cases turn on the constitutional doctrine of separation of powers. We are talking in each case of separating the powers delegated to the federal government by the Constitution from the powers reserved by it to the states. We are talking major constitutional history.

Most of the press coverage has focused upon the California case of Angel McClary Raich and Diane Monson. Both women are seriously ill, Raich from an inoperable brain tumor, Monson from chronic back trouble and painful muscle spasms. After conventional medications failed to give them relief, their doctors turned to California's Compassionate Use Act of 1996. The law authorizes physicians to prescribe marijuana as a palliative in cases of cancer, anorexia, arthritis, migraine, and "any other illness for which it provides relief."

Such prescriptions are legal under the laws of eight other states, but they conflict with federal laws and regulations that punish possession or use of a "controlled substance." The lawsuit seeks to protect them and their doctors from prosecution under federal drug laws.

The U.S. Court of Appeals for the 9th Circuit split 2-1 in siding with the two women. Judge Harry Pregerson, writing for the majority, emphasized that the marijuana used in their medication never enters the stream of interstate commerce. The cannabis is grown, harvested and consumed within the state. Judge C. Arlen Beam of the 8th Circuit, sitting by designation, disagreed. He saw no way to distinguish the plaintiffs' home-grown medical marijuana from the social marijuana that federal law condemns. The Supreme Court will settle the issue by early spring.

The high court's decision in the marijuana case from California will surely influence its disposition of the suicide case from Oregon. Both cases are rooted not only in federal powers under the Commerce Clause but also in state powers under the 10th Amendment. The regulation of medical practice historically has been regarded as a power reserved to the states respectively. Where does U.S. Attorney General John Ashcroft find authority to nullify Oregon's Death With Dignity Act of 2003?

The attorney general finds his authority over death- inducing drugs in the same place he finds authority for banning medical marijuana. He finds it in the Controlled Substances Act of 1970. The law prohibits doctors from prescribing drugs that have "no currently accepted medical use in treatment in the United States." Authorized drugs must have "a legitimate medical purpose," and Ashcroft reasons that "assisting in suicide is not a legitimate medical purpose."

In its opinion five months ago, the 9th Circuit held that Ashcroft's directive is "unlawful and unenforceable." It exceeds the scope of the act and ignores the attorney general's limited role. "We note that the attorney general has no specialized expertise in the field of medicine." Moreover, said Judge Richard C. Tallman, the directive violates the concept of federalism, which teaches that "direct control of medical practice in the states is beyond the power of the federal government."

Tallman quoted Justice John Paul Stevens in a marijuana case three years ago: Whenever possible, said Stevens, federal courts must minimize state and federal conflict in areas "in which the citizens of a state have chosen to serve as a laboratory in the trial of novel social and economic experiments without risk to the rest of the country."

Then Tallman rubbed it in. The Controlled Substances Act was enacted to combat drug abuse. "To the extent that it authorizes the federal government to make decisions regarding the practice of medicine, those decisions are delegated to the secretary of health and human services, not to the attorney general. His unilateral attempt to regulate general medical practices historically entrusted to state lawmakers interferes with the democratic debate about physician-assisted suicide and far exceeds the scope of his authority under federal law."

Amen to that! In the view of this old-fashioned, octogenarian, unreconstructed states'-righter, that is the Sound Doctrine. And behold: It comes from the 9th Circuit! If the Nebulous Ninth can defend the 10th Amendment, all is not yet lost.

E-mail Jack Kilpatrick at [email protected] Distributed by Universal Press Syndicate.