High Court Must Take Lead in Medical Marijuana Debate Because Politicians Will Not

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The
Supreme Court heard oral arguments yesterday on whether Angel Raich
and Diane Monson are legally protected medical patients or common
criminals. In the opinions of their physicians and under the laws
which govern their home state, both women are medically authorized
users of marijuana – a substance they use therapeutically to relieve
multiple ailments, including chronic pain, spasms and life-threatening
appetite loss. Under federal law, however, both Ms. Raich and Ms.
Monson, as well as thousands of seriously ill patients like them,
are unrepentant lawbreakers who deserve to be prosecuted and incarcerated
for flouting the government’s ban on the use and cultivation of
marijuana.

First,
some background. In 1996, voters in California chose overwhelmingly
to legalize the physician-supervised use of marijuana. (Nine additional
states have since done likewise.) Shortly thereafter, Ms. Raich
and Ms. Monson, at the behest of their doctors, began using marijuana
for symptomatic relief – a practice each continues to this
day.

In
2002, in
response to a wave of federal arrests and prosecutions of state-authorized,
California marijuana patients and providers (including an August
15, 2002 DEA raid on Ms. Monson’s own six-plant medical garden),
Ms. Raich and Ms. Monson filed suit in federal court seeking to
bar the US Justice Department from taking legal action against them
for their state-sanctioned use of medicinal cannabis. The pair argued
that the federal prosecution of authorized patients who possess
and cultivate marijuana for their own personal medical use in compliance
with state law was an unconstitutional exercise of Congress’ Commerce
Clause authority.

In
December 2003, the
9th Circuit Court of Appeals ruled

2-1 in favor of Ms. Raich and Ms. Monson, finding: “We find the
appellants’ class of activities – the intrastate, noncommercial
cultivation, possession and use of marijuana for personal medical
purposes on the advice of a physician – is, in fact, different
in kind from drug trafficking. … Moreover, this limited use is
clearly distinct from the broader illicit drug market … insofar
as the medicinal marijuana at issue in this case is not intended
for, nor does it enter, the stream of commerce.
… This conclusion, coupled with the public interest considerations
and the burden faced by the appellants if, contrary to California
law, they are denied access to medicinal marijuana,” warrants the
court to find in favor of the appellants’ request for injunctive
relief from federal prosecution.

The
US Justice Department is now asking the Supreme Court to overturn
the 9th Circuit’s decision.

One
of the fundamental questions before the court is whether there exists
a recognizable use of marijuana for medicinal purposes that differs
from the criminal use and trafficking of marijuana as defined by
federal law. Numerous patients, doctors, medical associations (including
the American Nurses Association,
the American Public Health Association, and the prestigious National
Academy of Sciences Institute of Medicine), as well as 80 percent
of the American public say “yes.” Federal lawmakers say “no.” It’s
a legal and public health standoff that the High Court must ultimately
settle.

It
isn’t supposed to be this way. Throughout history, the public has
looked to Congress – not the courts – to be the architects
of public policy. Yet, despite decades of mounting scientific evidence
in favor of amending the legal status of medical marijuana (as the
governments of the Netherlands, Canada and Great Britain have recently
elected to do), Congressional lawmakers have chosen to hide their
collective heads in the sand. Their abdication of this issue has
left seriously ill patients and their advocates with few alternatives:
take their issue directly to the voting booth, or take their issue
directly to the courts. To date, they have successfully done both.

It
has been argued that neither voters’ plebiscites nor judicial activism
makes for sound public policy. In this case, however, Congress has
left America’s sick and dying few alternatives. By steadfastly refusing
to enact rational federal reforms, lawmakers have forced voters,
and now the high court, to determine America’s federal policy on
medical marijuana. For the health and safety of Ms. Raich and Ms.
Monson, and for the well-being of the thousands of patients like
them who presently enjoy legal protection to use medicinal cannabis
under state law, let’s hope the court’s nine justices
do so with more common sense and compassion than that of their legislative
brethren in Washington.

November
30, 2004

Paul Armentano [send him mail]
is the senior policy analyst for the NORML Foundation
in Washington, DC.

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