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Medical Marijuana Draws Skepticism at U.S. Top Court
11/29/04 | Bloomberg.com | Laurie Asseo

Nov. 29 (Bloomberg) -- Several U.S. Supreme Court justices expressed doubts that states can let seriously ill patients ease their symptoms by using Marijuana, a drug the federal government has designated as illegal.

The Bush administration is appealing a lower court decision allowing two California women to use Marijuana on their doctors' recommendation. The administration says the federal Controlled Substances Act, which lists Marijuana among the most strictly controlled drugs such as cocaine and LSD, overrides laws in 10 states that permit medical use of Marijuana.

There's no reason to believe ``everybody is going to get it from a friend or from plants in the back yard,'' Justice David H. Souter told the lawyer for the two women. ``They're going to get it in the street. Why isn't that the sensible assumption?''

The case pits the federal drug law against a line of Supreme Court decisions that tilted the federal-state balance of power toward the states. The court ruled in 1995 that Congress couldn't make it a federal crime to possess a gun in a school zone, and in 2000 the justices struck down a provision that let rape victims sue their attackers in federal court.

In those cases the court said Congress's authority to regulate interstate commerce didn't cover local, non-economic acts. In today's case, the two California women say the same logic means Congress can't override the state's voter-approved law allowing doctor-recommended use of locally grown Marijuana that doesn't cross state lines.

Chief Justice

Chief Justice William H. Rehnquist, who has been undergoing treatment for thyroid cancer with radiation and chemotherapy, didn't attend the hour-long argument in Washington. Justice John Paul Stevens, who presided over the session, said Rehnquist will participate in the case by reading court briefs and a transcript of the argument.

``People are sick and people are suffering and people are dying,'' said Randy Barnett, a Boston University law professor representing California patients Angel Raich, 39, and Diane Monson, 46. He said the medical use of Marijuana would have a ``trivial'' effect on the illegal market for the drug.

Arguing for the Bush administration, acting U.S. Solicitor General Paul Clement said medical use of Marijuana ``is not something that's going to be limited to one or two users at a time.'' He said the California law might allow use of the drug by 100,000 patients, including many whose condition isn't terminal.

``Any little island of lawful possession'' creates a ``real challenge to the statutory regime,'' Clement said.

No `Medical Necessity'

Justice Antonin Scalia asked Barnett how his argument of a trivial economic effect from medical Marijuana would apply to federal laws protecting endangered species. Those laws ban possession of ivory or eagle feathers without regard to whether a person obtained them through interstate commerce.

``Are those laws likewise unconstitutional?'' Scalia asked.

Justice Sandra Day O'Connor suggested, though, that medical use of Marijuana may be ``something traditionally regulated by states.'' She asked Clement whether the Supreme Court's rulings on the gun law and the rape law created concern about enforcing the federal law against medical-Marijuana users.

Other states that allow medical use of Marijuana are Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington. In an earlier Marijuana case in 2001, the Supreme Court ruled there was no ``medical necessity'' exception to the controlled-substance law.

Marijuana users spend about $10.5 billion a year on the drug, Clement said.

Illegal Market

Stevens asked Barnett how allowing medical use of Marijuana would affect the illegal market. The lawyer said it would slightly reduce demand and reduce prices.

``Reduce demand and reduce prices? Are you sure?'' Stevens said.

Advocates of medical use say Marijuana can ease cancer patients' nausea from chemotherapy, help treat glaucoma, stimulate AIDS patients' appetite and ease pain for multiple sclerosis sufferers.

The U.S. Food and Drug Administration has approved a drug called Marinol, which contains Marijuana's active ingredient, to treat such symptoms. Supporters of medical-Marijuana laws say Marinol is less effective than smoked Marijuana.

Justice Stephen G. Breyer suggested the ``obvious way'' to seek approval for medical use of Marijuana is to ask the FDA, and if the agency refuses, to challenge its decision in court.

``Medicine by regulation is better than medicine by referendum,'' Breyer said.

`I'd Be Dead'

Raich, at a news conference after the argument, said federal agencies haven't acted on requests to allow medical use of the drug.

``If I personally was to not use cannabis and go straight to the FDA, I'd be dead,'' Raich said. Doctors for Raich and Monson say all other medicines failed to treat their symptoms or caused intolerable side effects.

Raich, of Oakland, California, suffers from conditions including an inoperable brain tumor, seizures and nausea. She uses Marijuana grown free of charge by two caregivers who also joined the suit. Monson, of Oroville, California, suffers from chronic back pain and muscle spasms caused by a spinal disease. She grows her own Marijuana.

After federal drug agents raided Monson's home in August 2002, Monson, Raich and the two unidentified caregivers filed suit seeking to stop federal officials from enforcing the controlled- substance law against them.

Drug Free Foundation

A judge ruled for the government. The San Francisco-based 9th U.S. Circuit Court of Appeals last December reversed and barred enforcement of the law against the four who sued.

The Drug Free America Foundation supported the government in a brief that said Marijuana use is ``dangerous and without legitimate medical application.''

Among those supporting the California women were the Cato Institute and the Institute for Justice, two Washington-based research groups that seek limited government. The Cato Institute said allowing limited use of a controlled substance under a doctor's care ``fits squarely within an area of state expertise.''

The justices are expected to rule by July.

The case is Ashcroft v. Raich, 03-1454.

To contact the reporter on this story:
Laurie Asseo in Washington at lasseo1@bloomberg.net.

To contact the editor responsible for this story:
Glenn Hall at ghall@bloomberg.net.

Last Updated: November 29, 2004 13:25 EST

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