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Medical Marijuana Victories

With courts rejecting the government's latest attempt to roll back protections, medical marijuana proponents have the feds on the ropes.
 
 
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While the federal government continues to insist that marijuana is not a medicine, the medical marijuana movement has been pushing back -- scoring a recent string of legal victories that will make 2004 a pivotal year for patients and their caregivers.

The latest blow against the federal drug warriors came last week when medical cannabis patient Angel McClary Raich received word that the Ninth U.S. Circuit Court of Appeals had rejected the government's petition for a review of its ruling protecting medical cannabis patients. A three-judge panel of the appellate court decided last December in Raich v. Ashcroft that the arrest and prosecution of medical cannabis patients is unconstitutional as long as they obtain their marijuana without purchasing it or crossing state lines -- and if they use the plant medicinally in compliance with state law.

"It makes me feel really good to know that the Ninth Circuit Court of Appeals has joined the eighty percent of Americans who feel that cannabis is a legitimate medicine," says Raich pointing the November 2002 Time Magazine poll which found overwhelming support for medical marijuana.

The ruling was initiated by a 2002 lawsuit filed by Raich and fellow cannabis patient Diane Monson, whose medical marijuana garden was destroyed by federal agents. The women sought an injunction against the raids, which the Drug Enforcement Administration has been carrying out for seven years against California medical cannabis dispensaries, patients and their caregivers. "That was very scary for me," says Raich who has an inoperable brain tumor and says she needs cannabis to stay alive. "I had to protect myself and other patients."

The U.S. Justice Department attempted to reverse the decision by petitioning the federal appeals court for an "en banc" review by 11 judges. But the judges stood unanimously behind their decision. The final ruling became effective immediately in the seven states within the Ninth Circuit's jurisdiction that have medical cannabis laws. They include Alaska, Arizona, California, Hawaii, Nevada, Oregon and Washington. The Justice Department has 90 days to appeal the ruling to the U.S. Supreme Court. "We have not made any determination what the next step will be," says Department of Justice spokesperson Charles Miller who declined to comment on the Ninth Circuit decision.

Raich, a frail and determined mother of two, took part in the last Supreme Court decision on medical cannabis. Back in 2001, she was one of the fourteen medical cannabis patients cited by the Oakland Cannabis Buyers' Cooperative (OCBC) in its request for a "medical necessity" exemption to federal drug laws. The court struck down the medical necessity argument and ordered a permanent injunction against the cooperative's distribution of medical cannabis. But judges did not consider the constitutional questions surrounding the government's power to apply federal drug laws to the medical marijuana patients themselves.

Raich v. Ashcroft could well be the case in which the Supreme Court finally addresses these issues. The Ninth Circuit based the Raich v. Ashcroft decision on an interpretation of the Commerce Clause, which gives the government the power to control interstate commerce. Since the medical marijuana in question was used only in state and was not for sale, the court ruled that the federal government had no jurisdiction. Activists are encouraged by the fact that the Supreme Court's conservative majority has already made several rulings restricting federal powers to interstate commerce.

Last year, the Supreme Court also let stand another Ninth Circuit decision that barred the federal government from punishing physicians who recommended medical marijuana to patients. Supreme Court justices declined to hear the case of Conant v. Walters, in which a group of California doctors and patients sued on First Amendment grounds after the federal government threatened to revoke the DEA licenses of physicians who recommend cannabis.

The Legacy of Raich v. Ashcroft

As a landmark ruling, Raich v. Ashcroft could influence the outcome of the OCBC case still under consideration by the Ninth Circuit. But the OCBC case involves the sale of medical cannabis while the plaintiffs in the Raich case got their marijuana for free. The facts of Raich v. Ashcroft have more in common with another lawsuit brought by the Wo/Men's Alliance for Medical Marijuana (WAMM), a patient's cooperative that did not charge for their medical cannabis. WAMM filed their lawsuit in U.S. District Court in San Jose in April 2003 after the DEA seized WAMM's medical marijuana garden in a paramilitary operation that was resisted by local patients. WAMMs lawsuit calling for an injunction against future raids was struck down. But the District Court has now agreed to review its ruling in light of the Raich decision. While the Ninth Circuit focused on the Commerce Clause and not the patients' claim that they had a right to be free from pain and suffering under the Fifth and Ninth Amendments, these constitutional issues are raised in the lawsuit filed by WAMM, which includes many terminally ill patients.

There are signs that the federal government may be getting increasingly nervous about the run of favorable marijuana rulings. Buried in the 2004 federal spending bill is the so-called "Istook Amendment" which cuts off more than $3 billion in federal funding from local transit authorities that display advertisements promoting "the legalization or medical use of any substance listed in Schedule I ... of the Controlled Substances Act." Representative Ernest Istook (R-OK) added the amendment after seeing marijuana law reform ads that he disagreed with. Faced with loosing $85 million in federal funding, the Washington Metropolitan Area Transit Authority rejected an advertisement last month submitted by a coalition of drug policy reform groups. The ad shows a group of ordinary people standing behind prison bars under the headline, "Marijuana Laws Waste Billions of Taxpayer Dollars to Lock Up Non-Violent Americans."

On February 18, drug law reformers stuck back. The ACLU, Change the Climate, the Drug Policy Alliance and the Marijuana Policy Project (MPP) filed a lawsuit against the U.S. Government and the Transit Authority for censoring the speech of those who oppose the federal war on drugs. The lawsuit, ACLU v. Mineta, asks the court to declare the Istook Amendment unconstitutional, order the Washington Metro to accept the groups' paid advertisement, and to prohibit the federal government from cutting off any funds to the Washington Metro or any other transit authority that permits the display of advertisements "promoting the legalization or medical use" of marijuana or other Schedule I drugs. Plaintiffs in this lawsuit point out that the same 2004 federal budget that slams marijuana law reform advertising, includes $145 million in taxpayer money for pro-drug war ads that focus primarily on an anti-marijuana campaign.

As the medical marijuana lawsuits make their way through the courts, the plaintiffs continue to organize. WAMM founders Mike and Valerie Corral have been working with the City of San Francisco to implement Prop. S, a 2002 ballot measure which directs the city to explore the possibility of growing and distributing medical cannabis. MPP is working to pass medical marijuana bills this year through state legislatures in Connecticut, Illinois, New York, Rhode Island and Vermont. Members of the OCBC have been lobbying their local city council in Oakland, California, which moved last month to shut down all but four of the city's dozen thriving medical marijuana dispensaries. Activists succeeded in keeping the city's current allowance of 72 plants and three pounds of dried cannabis per patient.

For her part, Raich has recorded pro-medical cannabis phone messages sent to 600,000 registered voters and is preparing for her next round with the federal government. "I am totally ready to go to the Supreme Court and take on Ashcroft, I am not backing down," said Raich. "Ashcroft has already lost to a dead guy, does he want to go to the Supreme Court and loose to someone like me who is sick and disabled?"

Ann Harrison writes the At Liberty column from San Francisco.