The Supremes Debate Medical Pot

By Steven Wishnia, AlterNet. Posted November 30, 2004.

"I need to medicate. I'm not feeling well," Angel McClary Raich says outside the Supreme Court on Monday, Nov. 29.

Raich, who has dark hair, pale olive skin and rimless oval glasses, is reed-thin – she struggles to keep her weight over 98 pounds. And no wonder she's thin; the 39-year-old Oakland, Calif. woman suffers from scoliosis, endometriosis, severe headaches, chronic nausea, unexplained seizures and episodes of paralysis, uterine fibroid tumors, a brain tumor too deep in her head to be removed, and a mysterious wasting syndrome where she loses life-threatening amounts of weight.

She has taken more than 30 different medications to deal with her conditions, including Vicodin, methadone, Tegretol, Paxil, Depakote, Dilantin, Promethazine, Marinol and cannabis. Cannabis is the only one that's been effective. She has to consume more than two ounces a week, in smoke, vaporization, food and cannabis-oil balm, but she no longer needs a wheelchair and can spend time with her two teenage children. "Cannabis gave me back my limbs," she says.

Another California woman, Diane Monson, 47, of Oroville, uses cannabis to control her painful back spasms, which did not respond to a decade of conventional medications, including Vicodin, Vioxx and the muscle relaxant Flexeril. But medical use of cannabis, while legal under California's 1996 law, is illegal under federal law. In August 2002, DEA agents raided Monson's garden and destroyed her six marijuana plants, after a three-hour stand-off with local police. "They were getting quite chesty with the federal guys," she recalls of the sheriff's dept. officers.

Two months after that raid, the two women petitioned the courts for an injunction to bar the federal government from interfering with their medical-marijuana use. A federal district court in California said no, but in December 2003, the Ninth Circuit Court of Appeals ordered the lower court to issue a preliminary injunction. The Justice Department appealed to the Supreme Court, which heard arguments on Nov. 29. A ruling is expected sometime in summer 2005.

The Commerce Clause

The key legal issue in the case, Ashcroft v. Raich, is how far the federal government can stretch its constitutional power to regulate interstate commerce. Federal drug prohibition justifies its usurpation of what are normally state police powers on the grounds that the illegal drug traffic is interstate commerce. But Monson grows her pot herself, and Raich gets hers donated by two local growers (who are anonymous parties to the suit). Therefore, they contend, as their marijuana never crosses a state line and no money changes hands, it is neither interstate nor commerce.

The two women also argue that preventing them from using medical marijuana would cause them "irreparable harm," severe pain and even death. "There are no other treatments I can reasonably recommend for Angel," Raich's physician, Dr. Frank H. Lucido of Berkeley, wrote in a deposition. "It could very well be fatal for Angel to forgo cannabis treatments." "Death constitutes irreparable harm," the patients' lawyers argue.

The case represents California pot patients' second effort to break the legal yoke that the federal Controlled Substances Act holds around state laws that let sick people use cannabis if they have a valid recommendation for it from their doctor. In the first case, U.S. v. Oakland Cannabis Buyers Cooperative in 2001, patients argued that "medical necessity" trumped the federal law, much as ambulances are allowed to break the speed limit. (Raich's husband, Robert, was one of the Oakland co-op's lawyers.) The Court unanimously rejected that claim for sale and distribution of marijuana, but left it unresolved for individual medical use.

The Justice Department's case relies mainly on a 1942 Supreme Court decision, Wickard v. Filburn, in which an Ohio farmer, Roscoe Filburn, was fined $117 for violating New Deal agricultural regulations by growing 460 bushels of wheat, twice his allowed quota. Filburn claimed that the wheat was for his family's personal use, so it was neither interstate nor commerce. The Court held that if enough farmers followed his example, it could substantially affect the interstate commerce in wheat.

Steven Wishnia is the author of “The Cannabis Companion” (The Running Press) and "Exit 25 Utopia."

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