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Justices Doubtful About Medical Marijuana

November 30, 2004

WASHINGTON — Liberal and conservative Supreme Court justices expressed doubt Monday that sick patients should be allowed to use doctor-recommended marijuana to relieve pain.

Justice Antonin Scalia, one of the five conservatives on the nine-member court, said federal law criminalizing marijuana trumps a California law that allows chronically ill patients to use it.

Making an exception for patients, liberal Justice David Souter said, could open the door to widespread marijuana use and to fraudulent claims of illness by recreational pot smokers in California and the 10 other states that allow medical marijuana.

Justice Stephen Breyer, another liberal, said advocates for medical marijuana should first ask the federal Food and Drug Administration to reclassify pot as having a medical use. The U.S. government considers marijuana to be an intoxicant with no medicinal value. Citing California voters’ approval of medical marijuana in 1996, Breyer said, ”Medicine by regulation is better than medicine by referendum.”

The justices’ comments came during oral arguments in a case brought by Angel Raich and Diane Monson, critically ill Californians seeking to use marijuana under state law without facing federal prosecution. In court briefs, the women argue that marijuana provides relief for symptoms of an inoperable brain tumor, scoliosis and other maladies for which conventional medicine is of little or no help.

The women won an injunction from the U.S. Court of Appeals for the 9th Circuit that blocks the U.S. government from arresting them or seizing their marijuana plants. But the government, which has made opposing medical marijuana part of its war on drugs since the Clinton administration, appealed to the Supreme Court.

The Supreme Court’s decision is likely to have an impact on California and the other states that permit marijuana use for medical reasons: Alaska, Arizona, Colorado, Hawaii, Maine, Maryland, Nevada, Oregon, Vermont and Washington.

Monday’s arguments suggested the case could turn on a point of law that has nothing to do with marijuana’s medicinal value.

Acting Solicitor General Paul Clement argued that the Constitution’s language allowing the U.S. government to regulate interstate commerce allows it to override California’s medical marijuana law. In the past 75 years, the court has permitted Congress to use this ”commerce clause” to regulate housing, restaurant and hotel accommodations, farm production and other areas that traditionally were the province of state or local law.

Randy Barnett, arguing for Raich and Monson, countered that pot grown by or given to sick patients does not amount to interstate commerce and thus should not be subject to federal drug law. ”It’s non-economic and intrastate,” he said.

Barnett’s position appeared to be supported by Justices Sandra Day O’Connor, who usually votes with the court’s conservatives, and Ruth Bader Ginsburg, one of the court’s liberals. But Souter said medical marijuana’s potential market in California alone includes tens of thousands of chemotherapy patients who might use the drug to counteract the side effects of their treatment. He said those patients create a market for marijuana, legal or illegal, that ”show(s) the activity is economic.”

Chief Justice William Rehnquist, who has thyroid cancer, missed Monday’s arguments and plans to remain home at least until Dec. 13, when the court will adjourn for the holidays. Rehnquist plans to continue to participate in decisions by reviewing transcripts of arguments, Justice John Paul Stevens said Monday.

The court ruled four years ago that cooperatives set up in California to grow pot for medical use could be prosecuted for drug trafficking. But that decision did not address marijuana grown by patients, which prompted the current case.

A decision is likely by next summer.




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