Protecting Patients' Rights

By Baylen J. Linnekin, AlterNet. Posted June 29, 2004.

Should sick and dying patients who are acting within the laws of their state have to live in constant fear that armed Drug Enforcement Administration agents will break down their doors, steal their medicine, and subject them to arrest and intimidation?

The U.S. Supreme Court decided Monday to take up that question – one that affects the life, liberty, and medical privacy of thousands of patients – in Raich v. Ashcroft. The landmark medical-marijuana case will go a long way to deciding whether a federal government created to defend individual rights may continue to erode those very rights. It pits the power of the Bush administration against patients who legally use marijuana to relieve symptoms of AIDS, cancer, multiple sclerosis and other illnesses.

The plaintiffs in the case are Angel Raich, who suffers from an inoperable brain tumor, a seizure disorder, wasting syndrome, and other documented medical conditions; Diane Monson, who suffers from chronic back pain and spasms; and two un-named caregivers. With a doctor's recommendation, Raich and Monson have for years legally used medical marijuana under California's voter-approved Proposition 215.

In spite of this state protection DEA agents raided Monson's home in 2002, seizing and destroying her marijuana plants.

At issue in the case is a December 2003 Ninth Circuit Court of Appeals decision protecting Raich and Monson and thousands of other patients in states under court jurisdiction that have passed laws permitting use of medical marijuana – Alaska, California, Hawaii, Nevada, Oregon and Washington.

The Ninth Circuit decision prohibits the federal government from inappropriately applying the Interstate Commerce Clause to arrest medical marijuana patients acting consistent with the laws of their state who grow their own medicine or obtain it from others as long as 1) all related activity remains within a state that has legalized medical marijuana, and 2) the individual does not seek to obtain their medicine from others through commercial activity.

Should the Supreme Court uphold the Ninth Circuit Court ruling in Raich v. Ashcroft, to be argued after the high court re-convenes in October, the federal government would be forced to cease arresting and harassing legally protected medical-marijuana patients in states under Ninth Circuit jurisdiction, at the least.

"There's a complete disconnect between government policies and what the public thinks," said Judy Appel, director of legal affairs for the Drug Policy Alliance, in USA Today. "What's being challenged is whether the federal government can reach down and usurp local control."

Medical marijuana advocates, patients and caregivers scored an autumn 2003 victory before the Supreme Court in Conant v. Walters, the most recent medical marijuana case taken up by the nation's highest court, when the court let stand the right of doctors to advise their patients on the benefits of medical marijuana.

"If this case eventually goes to the Supreme Court, we will learn whether the more conservative justices who developed [Federalist] doctrine have the courage of their convictions when it applies to activities of which they may disapprove," wrote attorney Randy Barnett, who argued the case before the Ninth Circuit Court, in National Review shortly after the decision.

Advocates are optimistic that the Supreme Court will rule that the federal government has no right to reach into the medicine cabinet and cost the lives of innocent patients acting legally under the laws of their states.

Baylen J. Linnekin is a writer for <a href="http://www.drugpolicy.org/">Drug Policy Alliance</a>. The Alliance helped fund the plaintiffs in Raich v. Ashcroft.

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