November 29, 2004

South Bay Medical Marijuana Users Await Ruling

Before one 43-year-old Lomita resident summons the resolve to perform basic daily tasks like brushing her teeth, she must tackle the debilitating pain that is her constant companion.

So, Shelly, who requested her last name be withheld, takes a muscle relaxant, gingerly stretches for 30 minutes -- and then takes what she calls her medication with names like Super Silver Haze or Morningstar.

Shelly uses marijuana on a doctor's recommendation.

Her medical use of marijuana helps combat lupus, an auto-immune deficiency, and the excruciating pain caused by a muscle and tendon condition known as fibromyalgia that leaves her hobbling and sometimes needing a cane to walk. The afflictions have left the former telephone customer service employee unable to work and on long-term disability.

Marijuana, she says, helps alleviate nausea that can cause her to vomit for hours, muscle spasms that wrack her body and severe migraines that can leave her curled up sobbing in a fetal position in a darkened bedroom.

"Every single thing I do is a pain decision," said Shelly sitting stiffly in apparent discomfort in her living room that is a stone's throw from the Lomita sheriff's station. "But I use pain medication as a last resort. I don't want that groggy feeling you get from pain medication. I want to be able to function.

"People who say you can't have (marijuana) haven't limped in my shoes. I couldn't survive without it."

Under state law, a majority of voters have said Shelly can use medical marijuana, based on the 1996 passage of Proposition 215.

But the federal government says she can't, refuses to recognize state law and insists that marijuana has no accepted medical use.

Today, the U.S. Supreme Court will hear oral arguments in a case that may resolve the conflicting federal and state statutes.

"We want more clarity on this issue," said Richard Meyer, spokesman for the Drug Enforcement Agency in San Francisco. "Never before has a substance become medicine by a popular vote without making that substance go through a rigorous process that the Food and Drug Administration puts all drugs through."

It's the second time in three years the court has addressed the issue.

In 2001, the court ruled against the distribution of medical marijuana, a decision that prompted raids on growing operations.

Ashcroft v. Raich

This time medical marijuana proponents are more optimistic about Ashcroft v. Raich, a suit brought by an Oakland medical marijuana patient.

"This is the ideal case to have before the Supreme Court," said Steve Fox, director of government relations for the nonprofit Marijuana Policy Project, one of the organizations helping pay for the litigation.

"The named plaintiff in the case is a highly sympathetic patient whose medical need for marijuana cannot reasonably be questioned. And there is no evidence at all -- in fact it's pretty much been stipulated by all parties involved -- there was no interstate commerce involved."

That last point is key.

It is the so-called Commerce Clause of the U.S. Constitution, which covers interstate trade, that the federal government interprets as giving it broad powers to regulate the sale and distribution of medical marijuana.

For decades, the U.S. Supreme Court has approved a gradual expansion of the Commerce Clause, awarding the federal government ever increasing regulatory authority.

But the last two major decisions affecting the Commerce Clause before the conservative-leaning court dating back to 1995 have resulted in the majority ruling against expanding the Commerce Clause -- and in favor of states' rights -- for the first time since 1936.

The 9th U.S. Circuit Court of Appeals adopted a similar stance last December, when it ruled that medical marijuana activities do not cross state lines, setting up the latest legal battle.

"People who have studied the law understand there always seems to be a drug policy exception to the Constitution -- when a drug case comes to the Supreme Court suddenly the federal government power seems to be unlimited," Fox said. "So, it would be foolhardy to predict the Supreme Court is going to overrule the 9th Circuit. But, if they are going to be ideologically consistent, it would be possible or perhaps likely to uphold state rights in this circumstance."

A growing consensus

Medical marijuana is not a partisan issue and polls suggest support for medical marijuana is widespread and -- no pun intended - - growing.

Proposition 215 passed when 56 percent of California voters cast ballots in favor of it. Today, an independent poll released earlier this year showed that figure has risen to 74 percent of registered voters.

South Bay Rep. Dana Rohrabacher, R-Huntington Beach, a close Bush administration ally, opposes the federal government stance on the issue.

For the past two years he has co-sponsored an amendment prohibiting the federal government from interfering in state medical marijuana laws. It has failed both times, although Rohrabacher believes if voting were conducted by secret ballot politicians who fear being branded as soft on drugs during a re-election campaign would likely have voted for it.

Rohrabacher, whose youthful dalliances with the drug are well documented, said in part his view was shaped by watching his mother die after an operation led to medical complications he believed may have been alleviated by marijuana.

"A lot of people always suggest that conservatives talk about little government on economic issues, but don't stand up for people on some of these other issues," he said. "I think there is some justification to that criticism.

"I don't believe the federal government should be at the level of government that controls every aspect of our society. I am someone who believes in federalism, just like our founding fathers did and especially criminal justice issues should be local or state (controlled)."

As far as the District Attorney's Office is concerned that's the case with medical marijuana users.

"We follow state law," said spokeswoman Jane Robison. "If they've got a valid doctor's prescription and (the marijuana) is for medical purposes, we don't prosecute."

Meyer, the DEA spokesman, concedes some local jurisdictions do not cooperate with the federal government.

But, while he concedes that THC -- the active ingredient in marijuana -- "may have some therapeutic value," he believes the marijuana lobby is using the seriously ill "to twist their own agenda" of legalizing all illegal drugs.

Some dubious claims

"I've heard reports that say marijuana is a life-saving drug and if (medical marijuana patients) don't smoke marijuana they may very well die for the lack of marijuana," Meyer said. "I know that is false. I know the American Medical Association does not endorse marijuana. In fact, the AMA says marijuana should remain illegal, that marijuana is not a harmless drug and that more research is needed."

But the AMA also believes doctors and patients should not be subject to "criminal sanctions" because "effective patient care requires the free and unfettered exchange of information on treatment alternatives."

Peter Warren, the San Pedro-based spokesman of the California Medical Association, which represents the state's 35,000 physicians, goes further.

The CMA believes that while more studies of marijuana are needed, it certainly isn't as dangerous a drug as painkillers like Demerol that can kill in high enough dosages, he said.

Warren charges that the Bush administration is engaged in the politicizing of medicine and seeks to disrupt the confidentiality of the patient-doctor relationship.

Hesitant to recommend

Many physicians, fearful of legal consequences or the possible loss of their medical license, are hesitant to recommend marijuana to their patients, even as a drug of last resort, where all other alternatives have failed, he said.

"The federal government is engaged in scaring physicians and intimidating them for trying to provide the best care possible for very sick people," Warren said.

"We find it inappropriate for the Justice Department to try and get between doctors and patients or try to scare patients or physicians into talking about this. This isn't a medically based decision, this is a political or criminal law-based decision."

An oncologist who works for one of the two largest cancer clinics in Torrance, but asked not to be identified, said that he has seen it benefit patients, decreasing pain, stimulating appetite, enhancing moods and reducing nausea.

But the cancer specialist said he doesn't recommend it to patients in part because of the conflict between federal and state laws.

"We're not sure if it keeps them from being prosecuted by a federal court," he said. "It's my obligation to prevent any harassment of the patient."

But some physicians, like Dr. William Vicary, the Los Angeles- based psychiatrist who treats Lomita resident Shelly, recommends it to chronically ill patients as a "last resort."

Marijuana can help some seriously ill patients and the federal government knows it, he said, pointing to the legal drug Marinol, a THC synthetic. But many patients, such as Shelly, find that not only is Marinol expensive, it is not as effective as marijuana.

"If the argument is marijuana doesn't do any good, what is the federal government doing approving this medication?" Vicary asked. "The quality of her life would be substantially diminished were she not to have access to medical marijuana."

Indeed, Shelly said she doesn't live day by day.

She cuts her life into 15-minute segments; it's a tactic used by someone whose existence is so overwhelming it can take three days to vacuum her condominium."

"I have the fear that if someone finds out who I am, they'll throw me in jail," she said.

"I'm hoping that more people realize marijuana is not a dangerous drug -- it's just a medication. I'm hoping we get more people with that point of view on the Supreme Court -- and on every court."