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

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

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