Medical Marijuana

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Medical marijuana was the topic Monday at the U.S. Supreme Court. The question was whether noncommercial medical marijuana could be banned by the federal government or whether the Constitution left it up to the states. The right answer is to leave it to the states.

The practical and humane reason is that people are suffering, the states are responding and the federal government isn't. The woman bringing the case, Angel McClary Raich, has an inoperable brain tumor. It is a struggle for her to keep down enough food to stay alive. Her doctor claims that he has tried 35 different treatments, and marijuana is what works. It is inhumane to deprive her of it simply because it creates an exception to the war on drugs.

There is also a legal issue. The Constitution gives Congress the power to regulate "commerce among the states." Since the New Deal, the Supreme Court has interpreted that permissively, to mean any activity that could affect commerce in any way.

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Angel McClary Raich is seriously ill. Diagnosed with an inoperable brain tumor and several complicating conditions, Raich found traditional medical treatments to be of little use. Having exhausted every legal alternative, her doctor recommended that she try marijuana — and it worked. Like many individuals suffering from chronic pain or loss of appetite, Raich found that marijuana alleviated her symptoms substantially. Yet to continue with this treatment, Raich, and those who supply her with marijuana free of charge, had to break federal law. Under California law, Raich can possess and use marijuana pursuant to a doctor’s prescription or recommendation. Yet according to the federal government, even such minimal marijuana possession approved by a doctor remains illegal.


Fearing potential prosecution, Raich went to federal court seeking a declaratory judgment that, among other things, the federal government lacks the constitutional authority to prohibit simple marijuana possession for personal medical use. Represented by noted libertarian law professor (and sometime NRO contributor) Randy Barnett, Raich argued that, at least as applied to her situation, the federal Controlled Substances Act (CSA) is unconstitutional. This week, the Supreme Court heard oral arguments in her case, Ashcroft v. Raich. At stake is more than California’s effort to legalize the medical use of marijuana. A decision for the federal government could send federalism and the constitutional doctrine of enumerated powers up in smoke.

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On behalf of Raich, Professor Barnett argued that the cultivation and possession of marijuana “solely for the personal medical use of seriously ill individuals, as recommended by their physician and authorized by State law” is simply beyond the reach of federal power. Under our constitutional structure, states retain “broad powers to define criminal law, regulate medical practice, and protect the lives of their citizens.” Federal power, on the other hand, is limited to the specific grant of enumerated powers in the Constitution, and does not reach mundane questions of criminal law. No matter how worthy the purpose of a given federal statute, it remains invalid if it exceeds the constitutionally proscribed bounds.
The federal government maintains that it has the power to prohibit the possession of any and all drugs, even in infinitesimal amounts, and therefore that California’s effort to legalize medical marijuana is preempted by federal law. Under the CSA, it is a federal crime to possess “schedule I” drugs like marijuana, with or without a doctor’s prescription. Like most federal regulatory statutes, the CSA was enacted pursuant to Congress’s power to “regulate commerce...among the several states.” As currently understood, this clause grants Congress the broad power to regulate commercial enterprises and other activities that have a “substantial effect” on interstate commerce. There is little question that this entails the power to regulate the production, distribution, and sale of pharmaceuticals, particularly insofar as medical markets are of national scope. Congress can empower the Food and Drug Administration to set conditions on the sale of approved pharmaceuticals and may authorize the Drug Enforcement Agency to arrest those who buy and sell drugs contrary to federal law.

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http://www.nytimes.com/2004/11/30/politics/30scotus.html

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ASHINGTON, Nov. 29 - The effort by advocates of the medical use of marijuana to link their cause to the Supreme Court's federalism revolution appeared headed for failure at the court on Monday.

During a lively argument, the justices expressed little inclination to view drug policy as a states' rights issue by which California and other states that have adopted "compassionate use" marijuana measures could displace federal regulation of homegrown marijuana distributed to patients without charge and without crossing state lines.


The closely watched case, which drew a crowd to the court, is an appeal by the Bush administration of a ruling last December by the federal appeals court in California that the federal Controlled Substances Act was "likely unconstitutional" as applied to two women who used marijuana under their doctors' care within the terms of Proposition 215, California's Compassionate Use Act, adopted by the voters in 1996.

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WASHINGTON (Reuters) - Several U.S. Supreme Court justices expressed reservations on Monday about allowing medical marijuana for sick patients whose doctors have recommended they smoke it for pain.
The justices appeared sympathetic to the federal government's argument that it has the power to prosecute or take other action against patients who use home-grown marijuana in states with laws allowing medical use.
The justices are deciding whether a federal law outlawing marijuana applies to two seriously ill California women whose doctors recommended cannabis for their pain. California is one of 10 states allowing medical use of marijuana, experts said.
At issue is whether the federal law, the Controlled Substances Act of 1970, amounts to an unconstitutional use of the U.S. Congress' power to regulate commerce among the states and does not apply to medical marijuana.
The case is seen as critical to the medical marijuana movement. The Supreme Court last ruled on the issue in 2001 when it said California cannabis clubs may not distribute marijuana as a "medical necessity" for seriously ill patients.

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http://www.bcrnews.com/articles/2004/12/02/news/news1.txt

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WASHINGTON, D.C. -- Can states allow residents to use marijuana for medical reasons when the federal government says no?

That is the question being currently debated by the justices on the U.S. Supreme Court in the case of Ashcroft v. Raich. Angel Raich has tumors in her brain and uterus, and suffers from seizures, spasms and nausea. Her doctor prescribed 35 drugs before he found one that worked -- marijuana.

Raich is joined in her lawsuit by Diane Monson, who first decided to file suit after federal agents raided her home in August 2002 to destroy the marijuana she uses for chronic back pain and spasms.

The two women sought an injunction to prevent further raids on their homes. This was denied by a federal judge, but an appeals court reversed the decision.

The appeals court ruled marijuana used for medical purposes was different from drug trafficking and said states could adopt medical marijuana laws, as long as the marijuana was not sold, transported across state lines or used for non-medicinal purposes.

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The U.S. Supreme Court heard arguments recently in a case involving the medicinal use of marijuana, a drug which is illegal in the United States. The high court will decide the case as a constitutional matter because it involves a conflict between federal and state laws. But the science behind the case - the medical value of marijuana - continues to be a matter of intense debate.

The trouble with trying to have an honest scientific discussion about marijuana's value as a medicine is that the drug is a flashpoint of controversy. In the 1960s, millions of American youngsters casually smoked marijuana to get high, protest authority, and celebrate their drug of choice. Today, years into the "war on drugs," public service announcements on television demonize marijuana as a prelude to date rape or a destroyer of families.

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WASHINGTON Nov 29, 2004 — The Supreme Court appeared hesitant Monday to endorse medical marijuana for patients who have a doctor's recommendation.

Justices are considering whether sick people in 11 states with medical marijuana laws can get around a federal ban on pot.

Paul Clement, the Bush administration's top court lawyer, noted that California allows people with chronic physical and mental health problems to smoke pot and said that potentially many people are subjecting themselves to health dangers.

"Smoked marijuana really doesn't have any future in medicine," he said.

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The Supreme Court ruled three years ago that the government could prosecute distributors of medical marijuana despite their claim that the activity was protected by "medical necessity."

Dozens of groups have weighed in on the latest case, which deals with users and is much more sweeping.

Alabama, Louisiana and Mississippi, conservative states that do not have medical marijuana laws, sided with the marijuana users on grounds that the federal government was trying to butt into state business of providing "for the health, safety, welfare and morals of their citizens."

Some Republican members of Congress, meanwhile, urged the court to consider that more than 20,000 people die each year because of drug abuse. A ruling against the government, they said, would help drug traffickers avoid arrest, increase the marijuana supply and send a message that illegal drugs are good.

California's 1996 medical marijuana law allows people to grow, smoke or obtain marijuana for medical needs with a doctor's recommendation.

Medical marijuana was an issue in the November elections. Montana voters easily approved a law that shields patients, their doctors and caregivers from arrest and prosecution for medical marijuana. But Oregon rejected a measure that would have dramatically expanded its existing medical marijuana program.

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http://pressherald.mainetoday.com/viewpoints/editorials/041213marijuana.shtml

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Imagine that you are sick.

You're in a lot of pain, and your doctor suggests using marijuana as a treatment. Under Maine law, those circumstances make it legal for you to use the drug.

The question is: What are you supposed to do now?

Have your local pharmacist fill a prescription for weed? Go to a convenience store for a pack of joints?

Laws on medical marijuana simply don't adequately address the issue of obtaining the drug. That leaves patients to choose between growing their own or buying it illegally.

The U.S. Supreme Court is deciding whether state laws on medical marijuana use should be allowed even though they violate federal drug legislation.

At the same time, a Maine activist is challenging Maine's laws. Don Christen of Madison established a marijuana distribution center in his house this fall to supply the drug to five ill people who possessed written recommendations from their doctors.

Clearly, it was illegal for him to do so, but should it be?

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hen Assemblyman Richard Gottfried proposed a bill legalizing marijuana for sick people in 1997, his odds of success seemed slim. State Senate Majority Leader Joseph Bruno, a Republican, vowed to defeat Gottfried's bill. And even Gottfried, a Democrat from Chelsea, admitted that turning his bill into law would be "an uphill battle." Back then, only two states permitted sick people to smoke pot legally.

Fast-forward seven years and the cause of medical marijuana has become a full-fledged political movement, with two national organizations running campaigns across the country. Medical marijuana is now legal in 11 states. And in New York, the cause has grown in popularity. Now even Bruno, who battled prostate cancer last year, has begun to sound much more receptive.

The battle over medical marijuana was back in the news again last week, when the U.S. Supreme Court heard the appeal of two sick women from California. Their case seeks to stop federal law enforcement agents from arresting pot-smoking patients who are obeying the laws of their own state. A ruling is not expected for months.

Even if the court decides against the two women, the medical-marijuana laws in states like California would not change; they would still permit patients to smoke pot (though these patients would be vulnerable to arrest by federal agents). "Nobody ever expected this case to get this far," says Ethan Nadelmann, executive director of the Drug Policy Alliance, which helped finance this lawsuit as well as medical-marijuana campaigns in eight states. "If we win this, it would be a very significant step forward. If we lose, it's just a tiny step backward."

Whatever the court's final decision, it will certainly affect the movement's momentum, and may determine the fate of Gottfried's bill in Albany next year.

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For New Yorkers with long memories, the debate over medical marijuana may feel like old news. During the 1980s, New York was one of seven states in the country that distributed marijuana cigarettes. The pot came from a federal farm down South. Through a research program, it was dispensed at hospitals around the state to people with glaucoma or cancer. (According to doctors and patients, marijuana relieves eye pressure in glaucoma sufferers and fights nausea induced by chemotherapy.)

New Yorkers had former assemblyman Antonio Olivieri to thank for this program. In 1979, Olivieri discovered he had a brain tumor. He underwent chemotherapy, and smoked marijuana to battle the side effects. Along the way, he became an outspoken crusader for legalizing medical marijuana. From his hospital bed, he lobbied the chair of the senate health committee by phone. The bill passed in 1980, and Olivieri died shortly afterward.

Between 1982 and 1989, the New York State Department of Health handed out almost 6,000 joints, to more than 200 people. Eventually the availability of Marinol capsules—which contain THC, the active ingredient in marijuana—decreased the demand for the cigarettes. (Many people do prefer marijuana, however, which they say is more effective.) At any rate, by the end of the decade, New York's medical-marijuana program had shut down, as had all the programs in other states.

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California kicked off the recent wave of medical-marijuana victories in 1996, when Proposition 215 prevailed, with 56 percent of the vote. Now, with a doctor's recommendation, people in California who suffer from AIDS, cancer, or glaucoma can legally grow and smoke marijuana. Over the next four years, several states followed California's lead: Alaska, Washington, Oregon, Maine, Colorado, Nevada. Each state put the issue on the ballot, and every time voters approved it. Last month, voters in Montana approved yet another medical-marijuana ballot initiative, this time by 62 percent.

Meanwhile, in 2000, Hawaii became the first state to remove criminal penalties for medical marijuana by using a different method: passing state legislation instead of putting an initiative on the ballot. Campaigns for ballot initiatives can be incredibly costly; given a choice, medical-marijuana activists usually prefer to achieve their goals through legislation. While it can be much more difficult to win over state legislators than regular voters, this strategy has begun to work. The Maryland state legislature passed a medical-marijuana bill in 2003, and Vermont did the same earlier this year.

A legislative victory in New York State—getting Gottfried's bill through the assembly and the senate, and then signed by Governor Pataki—would represent yet another substantial victory for the pro-pot movement. The Marijuana Policy Project, a national organization that spent $3 million on campaigns this year, will be targeting New York in 2005, as well as Rhode Island, Illinois, and a few other states. Already, the group has a lobbyist working in Albany.

Gottfried's bill would permit people to smoke marijuana legally with a doctor's certification if they have a "life-threatening condition." These include cancer, HIV, epilepsy, multiple sclerosis, Lou Gehrig's disease, non-Hodgkins lymphoma, and hepatitis C. Doctors who certify patients to obtain pot would be required to send a copy of their certification to the state health department. Patients would be allowed to receive a month's supply of marijuana at a time.

The bill has 45 sponsors in the assembly; seven are Republicans. One of the first Republicans to join the cause was Patrick Manning, who represents Dutchess County. A close friend of his has cancer, and has been smoking marijuana to battle the effects of chemotherapy. "If this could help someone make their life a little bit better, a little more pleasant, while they're going through such a horrible disease, then it would be wrong for me not to stand up," Manning says. "I started talking to my colleagues and asked them to join me, so we can really make it a bipartisan bill."

The talk show host Montel Williams traveled to Albany to lobby legislators in May. Williams, who uses pot to combat the pain caused by multiple sclerosis, met with Assembly Speaker Sheldon Silver, Bruno, and others. In June, Manhattan District Attorney Robert Morgenthau met with Williams, then announced his support for legalizing medical marijuana. A few weeks later, the New York City Council passed a resolution supporting Gottfried's bill. And in September, Williams returned to Albany to have a meeting about the issue with Governor Pataki.

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For any state that does legalize medical marijuana, the crucial question is always: Where does the pot come from? The federal government grows marijuana on a farm in Mississippi, and supplies joints to seven patients across the country through a research program run by the University of Mississippi. But this farm does not supply pot to new patients in states where medical marijuana has been legalized. These patients must either grow their own weed, or else buy it on the black market.

One idea that has been floating around for years is to redistribute marijuana that has been confiscated by the police. In past years, in New York State, this pot has been handed over to the state health department. Workers placed it on a conveyor belt, which delivered it to an incinerator. (The process wasn't always seamless; in 1986, workers took 63 pounds of marijuana for themselves, lifting it off the conveyer belt.) Gottfried's bill suggests a few possible sources of medical marijuana, including the state's confiscated stash.

While some legislators will likely want to wait to make a decision about Gottfried's bill until the Supreme Court makes its decision, Gottfried is pushing for faster action. "I think the fact that the Supreme Court decision is pending creates one argument for passing a bill at this very moment, because state action helps send a message . . . to the Supreme Court," he says. That message, of course, would be that the public wants to permit sick people to smoke pot without having to worry about a phalanx of police officers bursting through their front door.

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Angel Raich, 39, of Oakland, Calif., is suffering from a brain tumor. In accordance with California's Compassionate Use Act, which voters approved in 1996, her doctor prescribed medical marijuana to relieve her intense pain.

It was "the only drug of almost three dozen we have tried that works,'' said Dr. Frank Lucido, her physician.

Diana Monson, 47, of Oroville, Calif., also uses marijuana after her doctor recommended it to ease excruciating back spasms.

Monson smokes it; Raich puts it in a vaporizer and inhales the fumes.

A few days ago, the U.S. Supreme Court heard arguments by attorneys representing the women. The court's ruling, which will not be handed down for months, will affect similar patients in the 10 states that permit doctors to prescribe medical marijuana.

The Bush administration (like the Clinton administration before it) supports the federal law banning marijuana nationwide. The Bush administration insists it has no medical value and if doctors are allowed to prescribe it, that sets a bad example in the war on drugs.

Federal agents seized the California patients' marijuana, but the women challenged the legality of the seizure.

Last December the U.S. Court of Appeals for the Ninth Circuit based in San Francisco, known for its broad-minded rulings, called the federal seizure illegal because it violated California's Compassionate Use Act.

The appeals court said federalism and specifically states' rights were being trampled. The court said Congress did not have the constitutional power to run roughshod over medical marijuana laws enacted by California and the nine other states.

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The Bush administration appealed the ruling to the U.S. Supreme Court.

Unfortunately, the justices did not appear impressed recently by the states-rights' argument. Several justices cited legal precedents allowing federal law to override state law.

California's marijuana law had been challenged on different grounds in 2001. Then, the Supreme Court ruled that clubs distributing medical marijuana in California violated federal law.

The ruling enabled the feds to raid marijuana suppliers and threaten to yank the license of doctors who prescribed the drug for sick patients.

The pity, of course, is that medical marijuana has become hopelessly entangled with politics.

Both former President Clinton ("I did not inhale'') and President Bush (who refuses to say whether he ever smoked pot in college or later) are afraid they'll be perceived as soft on drugs if they endorse its medical use.

That same narrow-mindedness prevails in Congress. How would voters react if, say, the lawmaker is portrayed as one who endorsed "pot,'' even for medical use.

The American Medical Association also has been obdurate. It refuses to nod approval to medical marijuana even though a 1990 Harvard study found that two-thirds of oncologists surveyed said marijuana was useful in reducing nausea caused by chemotherapy.

And the prestigious New England Journal of Medicine in 1997 endorsed a doctor's right to prescribe medical marijuana. "If marijuana relieves the suffering even for one person, then why not use it?'' the journal editorialized.

A resounding majority of Americans agree, according to polls. Respondents thought doctors should have the right to prescribe marijuana if it relieves suffering.

The Canadian government, which is often more enlightened than ours, legalized medical marijuana three years ago. Unlike the United States, Canada did not wait for 100 percent scientific proof about its effectiveness. It relied instead on some medical studies and anecdotal surveys.

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The law permits Canadian doctors to prescribe marijuana for patients who are terminally ill or suffering from excruciating pain.

Many Americans do not know that Washington is two-faced about medical marijuana. In the 1970s, it launched a pilot program allowing some Americans to use taxpayer-funded marijuana for "compassionate use.''

The program is still operative, though Washington has timidly cut back on it. Fewer than 10 patients in America are permitted to use medical marijuana to relieve pain.

The tobacco is grown at a research institute in Mississippi, shipped to Raleigh to be rolled into cigarettes and mailed to medical centers in America where the patients pick up their supply. If it's permissible for them, then why not the rest of us?

Based on the justices' reaction to verbal arguments, it is unlikely the Supreme Court will approve the California law letting doctors prescribe marijuana for compassionate use. Congress, however, could do so.

That prospect is so remote as to be nonexistent. Politics will prevail.

Yet who among us would not want our doctor to prescribe marijuana if the drug relieved indescribable pain?