Medical marijuana back before high court Justices take up states’ rights case

OAKLAND, Calif. – Traditional drugs have done little to help 39-year-old Angel Raich.

Beset by a nightmarish list of ailments that includes tumors in her brain and uterus, seizures, spasms and nausea, she has been able to find comfort only in the marijuana that is recommended by her doctor.

It eases her pain, allows her to rise out of a wheelchair and promotes an appetite that prevents her from wasting away.

Her Berkeley physician, Frank Lucido, said marijuana “is the only drug of almost three dozen we have tried that works.”

On Monday, the Supreme Court will hear arguments in a case that will determine whether Raich and similar patients in California and 10 other states, including Maine, can continue to use marijuana for medical purposes.

At issue is whether states have the right to adopt laws allowing the use of drugs the federal government has banned or whether federal drug agents can arrest individuals for abiding by those medical marijuana laws.

California passed the nation’s first medical marijuana law in 1996, allowing patients to grow and smoke marijuana with a doctor’s recommendation. The Bush administration maintains those laws violate federal drug rules and asserts that marijuana has no medical value.

“I really hope and pray the justices allow me to live,” said Raich as she crammed a blend of a marijuana variety known as “Haze X” into a contraption that vaporized it inside large balloons.

She said the outcome of the case will determine whether her “husband will have a wife,” her “children a mother.”

The case will address questions left unresolved from the first time the high court considered the legality of medical marijuana.

In 2001, the justices ruled against clubs that distributed medical marijuana, saying they cannot do so based on the “medical necessity” of the patient. The ruling forced Raich’s Oakland supplier to close and other cannabis clubs to operate in the shadows.

The decision did not address whether the government can block states from adopting their own medical marijuana laws.

Nevertheless, the federal government took the offensive after the ruling, often over the objections of local officials. It began seizing individuals’ medical marijuana and raiding their suppliers. Nowhere was that effort more conspicuous than in the San Francisco Bay area, where the nation’s medical marijuana movement was founded.

Raich and Diane Monson, the other plaintiff in the case, sued Attorney General John Ashcroft because they feared their supplies of medical marijuana might dry up. After a two-year legal battle, they won injunctions barring the U.S. Justice Department from prosecuting them or their suppliers.

“This has been a nightmare,” said Monson, a 47-year-old accountant from Oroville whose back-yard crop of six marijuana plants was seized in 2002. “I’ve never sued anyone in my life, never mind the attorney general of the United States of America. For crying out loud, here in California we’ve voted to allow medical marijuana.”

She regularly uses marijuana on a doctor’s recommendation to alleviate back problems and to help cope with the recent death of her husband, who suffered from pancreatic cancer.

In December, the San Francisco-based 9th U.S. Circuit Court of Appeals ruled in Raich and Monson’s favor. It said federal laws criminalizing marijuana do not apply to patients whose doctors have recommended the drug.

The appeals court said states were free to adopt medical marijuana laws as long as the marijuana was not sold, transported across state lines or used for non-medicinal purposes. The other states with such laws are Alaska, Arizona, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington.

The court ruled that marijuana for medicinal purposes is “different in kind from drug trafficking” and outside the scope of federal oversight.

The same court last year said doctors were free to recommend marijuana to their patients. The government appealed, but the justices declined to hear the case.

In June, however, the justices agreed to hear the Raich-Monson case. A ruling is expected to decide the states’ rights issue the court left unanswered in 2001.

Acting Solicitor General Paul Clement told the justices in briefs that the government, backed by the 1970 Controlled Substances Act, has the power to regulate the “manufacture, distribution and possession of any controlled substance, even if such activity takes place entirely intrastate.”

Even some states without medical marijuana laws have criticized the federal government’s position. Louisiana, Alabama and Mississippi told the court they “support their neighbors’ prerogative in our federalist system to serve as laboratories for experimentation.”

A number of medical groups, doctors and marijuana supporters also wrote the court, saying marijuana benefits sick patients.

Raich, whose legal team includes her husband, Robert, said she hopes the chemotherapy Chief Justice William H. Rehnquist is undergoing for thyroid cancer “would soften his heart about the issue.”

“I think,” she said, “he would find that cannabis would help him a lot.”

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