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Justices Urged to Legalize Pot for Patients

November 30, 2004

WASHINGTON — A lawyer for chronic-pain sufferers argued before the Supreme Court on Monday that these people, upon a doctor’s recommendation, should be allowed to smoke marijuana to relieve their suffering.

The justices treated the argument skeptically, appearing more receptive to a federal attorney who said that permitting an unapproved, medicinal use for marijuana would defeat Congress’ goal of stifling the illegal drug trade.

It is “a bit optimistic” to believe that marijuana can be limited to in-home prescribed use when the illicit growth and sale of the drug is a multibillion-dollar industry, said acting U.S. Solicitor General Paul Clement, President Bush’s chief advocate before the high court.

At issue in the case is California’s 1996 Compassionate Use Act, which permits doctors to prescribe the home-grown weed for patients in severe chronic pain. The law, enacted by referendum, directly conflicts with the federal Controlled Substances Act, which prohibits the use of marijuana even for medicinal purposes.

Eight other states have enacted similar “medical marijuana” laws, including Alaska, Colorado, Hawaii, Maine, Nevada, Oregon, Vermont and Washington. The justices are expected to render their decision in the case, Ashcroft v. Raich, by July.

A California man who helped draft that state’s medical marijuana law was charged in Utah in 2001 for possession of the drug.

While a judge found the medical prescriptions that Dennis Peron and two other men had to use marijuana were irrelevant in Utah, he ruled the search of their Cedar City motel room that uncovered one pound of the drug was illegal and the charges were dropped.

Attorney Randy Barnett, who represents Californians who have received prescriptions for marijuana, said Congress has no authority to ban the drug’s use for medicinal purposes as long as it is grown, prescribed and taken in the same state and not sold.

Watching the argument was Angel Raich, an Oakland, Calif., mother of two who said she tried dozens of prescription medicines to ease the pain of a brain tumor and other illnesses before she turned to marijuana. She and another ill woman, Diane Monson, filed a lawsuit to protect their access to the drug after federal agents confiscated marijuana plants from Monson’s yard.

Congress can only regulate drugs that are sold or transported across state lines under its constitutional authority to oversee interstate commerce, Barnett said.

But Justice David Souter called it unrealistic to presume that growing and using marijuana will be confined to a patient’s house and not involve the illegal interstate drug trade.

“They (the patients) are going to get it on the street,” Souter said. “There is no incentive (in the state law) to avoid the street market.”

Souter added that about 100,000 Californians could qualify for the medicinal use of marijuana, according to federal government estimates. That number lends further evidence to the unlikelihood that the state could keep the drug’s use limited to treatment and not sales across state lines, he said.

Justice Stephen Breyer added that permitting the medicinal use of a drug banned by the federal government will inevitably lead to its recreational use by people in otherwise excellent health.

“Everybody will say mine (use) is medical,” Breyer said. “It will create a mess.”

Breyer said California’s doctors should perhaps lobby the Food and Drug Administration to approve marijuana for pain treatment rather than rely on the controversial state law.

“Medicine by regulation is better than medicine by referendum,” he said.

Justice Antonin Scalia expressed concern that the California law could allow communes to possess marijuana so long as its use is considered medicinal. And Justice Anthony Kennedy said that the enormity of the illegal marijuana trade should enable Congress to limit the drug’s use on even a local basis.

Barnett responded that the justices “should trust the state of California” to enforce its law limiting marijuana use to medicinal purposes. Such a limitation ensures that the marijuana does not become part of the illegal, interstate drug market, said Barnett, of Boston.

Despite the attack from the justices, Barnett’s case for medical marijuana use has won so far. The San Francisco-based 9th U.S. Circuit Court of Appeals has ruled that the congressional authority to regulate interstate commerce cannot be invoked to outlaw the medicinal use of marijuana grown, prescribed and used in the same state.

Appealing that decision, Clement told the justices that the mere use of illegal drugs, even if wholly consumed in one state, has an inevitable effect on the interstate drug trade. Clement called it “unnatural” for a state to be able to confine to its borders the use of an illegal drug.

Congress has the authority to prohibit the local possession and use of contraband that can be sold between states, Clement said. A state cannot create a “little island of lawful possession” without undermining Congress’s legitimate effort to stem the flow of illegal drugs, he added.

Justice Sandra Day O’Connor, voicing the court’s only stated opposition to the government’s case, said Congress’ authority to regulate local activities is limited.

For example, the Supreme Court has struck down a federal law making it illegal to possess a gun near a school, saying such an offense is a state and not a federal matter, O’Connor said. Likewise, the private growth and smoking of marijuana for personal medical reasons is a matter perhaps reserved for the states, she added.

Barnett was representing Angel Raich and Diane Monson, Californians who have been prescribed marijuana for their pain but cannot use it due to the federal law.

Raich suffers from a variety of painful conditions, including scoliosis, joint dysfunction, headaches, multiple chemical sensitivities, asthma and seizures. Monson suffers from a degenerative spinal disease that causes chronic back pain and painful muscle spasms.

Barnett was also representing two people who seek to provide Raich with marijuana. They are identified in court papers only as John Doe Number One and John Doe Number Two.

Chief Justice William Rehnquist, who is recuperating from cancer surgery, did not attend the court session.

Contributing: Associated Press and Angie Welling, Deseret Morning News




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