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Supremes Uphold Status Quo

Medical marijuana patients say they are bloodied but unbowed by yesterday's Supreme Court ruling that the federal government can continue to override state laws permitting medical cannabis use.
 
 
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The U.S. Supreme Court ruled Monday that federal authorities have the power to prosecute medical cannabis patients. Medical cannabis patient Angel Raich says she has no plans to stop using marijuana under California law and will take her fight to Congress.

"Just because the Supreme Court today has ruled against me does not mean that the war on patients should begin," said Raich at an emotional press conference. "It means that it is time for the federal government to have some compassion and have some heart and please use common sense and not use taxpayer dollars to come in and lock us up."

Raich, together with fellow patient Diane Monson sought a court order preventing the federal government from arresting them and two caregivers who grow Raich's medical cannabis. The action stemmed from a raid on Monson's property by federal authorities who seized the cannabis she grew to treat her chronic pain condition.

The 9th U.S. Circuit Court of Appeals granted the women an injunction against prosecution, but the U.S. government appealed the case, Gonzales v. Raich , to the Supreme Court. The justices ruled in a 6-to-3 decision that the federal government can enforce federal drug laws through its power to regulate interstate commerce under the Commerce Clause.

Angel Raich's husband, Robert Raich, who served as one of the attorneys in her case, viewed the decision as a narrow ruling that did not address questions of due process or medical necessity raised in the closely watched case. He emphasized that that the decision will not impact state medical marijuana laws in Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Washington and Vermont that protect patients from arrest by state and local authorities. Raich noted that federal agencies make only 1 percent of the nation's 750,000 marijuana arrests every year.

"This case had much to gain to protect patients under federal law but nothing to lose because state law is in effect and it preserves the status quo," Robert Raich said. "The federal government will claim as it always has that medical cannabis is not recognized under the federal law, but it is legal for patients under state law, so we have not changed the state versus federal conflict here."

Raich charged that it was irresponsible for Congress to ignore medical evidence and prohibit seriously ill patients from using cannabis under federal law, and that other courts could consider the due process and medical necessity arguments. The justices agreed that the issue must now be taken up by Congress. "But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress," wrote Justice John Paul Stevens in the last paragraph of his majority opinion.

Angel Raich, who says she would die without cannabis to ease her numerous medical conditions, said she will soon undergo surgery to treat an early stage of cervical cancer and must continue to use medical cannabis because she cannot tolerate other painkillers. She says she even considered leaving the country, but her two children ultimately encouraged her to stay and keep fighting for the rights of cannabis patients.

"I don't like using cannabis; I use it because I have to to stay alive. I promised my kids I would be here for them," said Raich. "I would like to follow the law but I can't because the law is unjust. I will continue to fight if it takes the last breath in my body."

Raich says she will travel to Washington D.C. later this month to urge Congress to pass an amendment to an appropriations bill that bars the Drug Enforcement Administration from using its funds to raid and arrest medical cannabis patients. The U.S. House of Representatives is expected to vote on the Hinchey-Rohrabacher medical marijuana amendment next week.

Raich noted that she lobbied members of Congress earlier this year with talk show host Montel Williams, who uses medical cannabis to ease the symptoms of his multiple sclerosis. But Raich says many members of Congress would not meet with her and that people in positions of power must get more involved in pressuring Congress to reform marijuana laws. "I am here to talk on behalf of constituents and they are not taking my calls," Raich said. "Why? I want to know."

California State Attorney General Bill Lockyer, who supports medical cannabis, submitted an amicus brief supporting the Raich case as did a number of other states. "Today's ruling does not overturn California law permitting the use of medical marijuana," said Lockyer in a statement. "Although I am disappointed in the outcome of today's decision, legitimate medical marijuana patients in California must know that state and federal laws are no different today than they were yesterday."

The arguments in the case were crafted to appeal to federalist Supreme Court justices with a history of upholding states rights. The swing justices were Anthony Kennedy and Antonin Scalia, who had ruled for states rights in past decisions regarding guns in school zones and violence against women. But in the Raich case they broke with their conservative colleagues to uphold the powers of the federal government.

"Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has no demonstrable effect on the national market for marijuana," wrote Clarence Thomas in his dissenting opinion. "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the federal government is no longer one of limited and enumerated powers."

Thomas was joined in dissent by Chief Justice William Rehnquist and Sandra Day O'Connor.

Some activists are concerned that the ruling will encourage federal authorities to arrest medical cannabis patients and the growers and dispensaries that provide their marijuana. The DEA has maintained throughout the Raich case that all marijuana use is illegal and that the agency has an obligation to uphold the law.

"Marijuana is not medicine," said DEA spokesperson Richard Meyer, who declined to say whether federal authorities are planning to target the medical cannabis community.

State law enforcement authorities in some California municipalities have voiced concern that doctors are interpreting the state law too broadly and giving medical cannabis recommendations to those who don't need it. But Steve Fox, director of government relations for the Washington D.C.-based Marijuana Policy Project, notes different states apply different standards for qualifying as a medical cannabis patient. He adds that recently recalled pharmaceutical painkillers such as Vioxx have proven to be much more harmful than cannabis.

In addition to its potential for sparking new federal prosecution, the Raich decision will impact over 30 pending federal medical cannabis cases, including that of the Oakland Cannabis Buyers Cooperative (OCBC) where Raich used to purchase her medical cannabis. The OCBC lost its case in the Supreme Court on a medical necessity argument and has been barred from distributing medical cannabis pending a lower court decision. "I didn't expect to win in court -- this is not a legal problem, this is a political problem," said OCBC director Jeff Jones.

Jones believes the federal government may well see the decision as a greenlight to prosecute patients, growers and dispensary owners. But he believes those criminal trials and the controversy they generate will ultimately shift the politics of medical cannabis. "It will be painful for the people involved, but it will help change these laws," Jones said. "Bring it on."

Ann Harrison is a freelance reporter working in the Bay Area.