A Defeat For Users Of Medical Marijuana

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By Charles Lane
Washington Post Staff Writer
Tuesday, June 7, 2005

The Supreme Court dealt a blow to the medical marijuana movement yesterday, ruling that the federal government can still ban possession of the drug in states that have eliminated sanctions for its use in treating symptoms of illness.

By a vote of 6 to 3, the court ruled that Congress's constitutional authority to regulate the interstate market in drugs, licit or illicit, extends to small, homegrown quantities of doctor-recommended marijuana consumed under California's Compassionate Use Act, which was adopted by an overwhelming majority of voters in 1996.

The ruling does not overturn laws in California and 10 other states, mostly in the West, that permit medical use of marijuana. In 2003, Maryland reduced the maximum fine for medical users of less than an ounce of the drug to $100.

But the ruling does mean that those who try to use marijuana as a medical treatment risk legal action by the U.S. Drug Enforcement Administration or other federal agencies and that the state laws provide no defense.

Writing for the court majority, Justice John Paul Stevens said the case was "troubling" because of users' claims that they needed marijuana to alleviate physical pain and suffering. But he concluded that the court had no choice but to uphold Congress's "firmly established" power to regulate "purely local activities . . . that have a substantial effect on interstate commerce."

Echoing an argument advanced by the Bush administration, Stevens expressed concern that "unscrupulous physicians" might exploit the broadly worded California law to divert marijuana into the market for recreational drugs.

The Bush administration, which has been emphasizing marijuana enforcement in its anti-drug strategy, hailed the ruling.

"Today's decision marks the end of medical marijuana as a political issue," said John P. Walters, President Bush's director of national drug control policy. "Our nation has the highest standards and most sophisticated institutions in the world for determining the safety and effectiveness of medication. Our national medical system relies on proven scientific research, not popular opinion."

But California Attorney General Bill Lockyer said that "seriously ill Californians will continue to run the risk of arrest and prosecution under federal law when they grow and or they use marijuana as medicine."

The ruling, he said, "shows the vast philosophical difference between the federal government and Californians on the rights of patients to have access to the medicine they need to survive and lead healthier lives."

Supporters of medical marijuana, noting that Stevens wrote that "the voices of voters allied with these respondents may one day be heard in the halls of Congress," said the fight over federal drug policy will shift to a new battleground.

"The decision highlights the opportunity we have to go to Congress and change these laws," said Robert Raich, a lawyer whose wife, Angel Raich, was one of two women who had sued to block enforcement of federal marijuana laws against them.

A House bill that would forbid the use of federal funds to prosecute medical marijuana use in states that permit it was defeated overwhelmingly last year but will be voted on again soon, advocates of medical marijuana said.

Yesterday's Supreme Court decision represented a victory for the court's supporters of federal power over its proponents of states' rights.

In two cases in the past decade, the court limited Congress's power to make laws in the name of regulating interstate commerce, saying that it had begun to intrude upon local affairs. Backers of medical marijuana had hoped to apply those precedents in this case, Gonzales v. Raich, No. 03-1454.

But Stevens concluded that the court was still bound by a 1942 Supreme Court decision that defined interstate commerce broadly to include, under certain circumstances, even subsistence wheat farming.

Much modern government regulation exists because of this broad definition of interstate commerce, which permitted the court to uphold, as exercises of Congress's commerce clause power, laws including New Deal farm controls and the ban on racial segregation in hotels and restaurants.

Stevens was joined by the court's three other consistent supporters of federal power, Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. He also picked up the votes of two justices, Antonin Scalia and Anthony M. Kennedy, who usually support states' rights.

Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas dissented.

Writing for the three, O'Connor noted that she "would not have voted for the medical marijuana initiative" in California, but she chided the majority for stifling "an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently."

In a separate dissent, Thomas added that if "the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives and potluck suppers throughout the 50 states."

The two California women who sued to block federal marijuana enforcement in California are Diane Monson, who was prescribed marijuana for lower-back pain, and Raich, who said that she must take the drug at least every two hours or else she will lose her appetite and die from a "wasting syndrome" whose medical cause is unknown.

"I don't know how to explain it," she said yesterday. "I just can't swallow without cannabis."

Monson's home was raided and her marijuana plants seized by federal agents in 2002; Raich says she receives the drug free from caregivers and joined Monson's lawsuit because she fears that her marijuana could be seized. Neither woman has been criminally charged. Raich's suppliers are also in the case, as John Does One and Two.


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