Patient Keeps Medical Marijuana Fight Alive

Patient Keeps Medical Marijuana Fight Alive
November 21, 2004
By JOHN A. MacDONALD, Courant Staff Writer

WASHINGTON -- Angel McClary Raich smokes marijuana every two hours when she is awake. She makes massage oil and balm from marijuana. And she bakes her own marijuana-laced brownies, cakes and cookies, which she eats before going to bed.

"I am a medical cannabis patient because it is a necessity to keep me from dying," said Raich, a frail 39-year-old Oakland, Calif., mother of two. "Taking a pill would be much easier and would take less time, but I simply do not have that option the way most others do."

For the second time in three years, Raich is asking the U.S. Supreme Court to stop the federal government from cutting off her access to marijuana, which she uses under a doctor's direction to treat pain, nausea and seizures associated with an inoperable brain tumor. Traditional medicines have not brought any relief, she says, and may worsen her condition.

In 1996, California became the first state in the nation to pass a law that allows residents to use marijuana for medical purposes. Nine other states have followed, but the federal government has never wavered in its opposition to the state measures.

The federal government's view is that Congress passed a law in 1970 strictly regulating the possession and distribution of marijuana. Because the law, the Controlled Substances Act, made no exception for medicinal use of marijuana, that should be the end of the matter, the government contends.

The Supreme Court sided with the government three years ago in an 8-0 decision that was a setback for Raich and other California residents who depend on marijuana for medical treatments. Now she is back with a new legal challenge to the government's position.

"I'm doing this because I want to live," she said. The court will hear arguments in the case Nov. 29.

Diane Monson, another California resident and medical marijuana user, has joined Raich in bringing the new case.

Analysts agree the case will present the court with difficult issues, but there is no consensus about the outcome.

"The facts are touching," said former Solicitor General Seth P. Waxman. "But I can't see this court telling [Attorney General] John Ashcroft to keep his hands off these women."

Ashcroft has announced his resignation and is not likely to be in office when the court announces its opinion, probably in the spring.

Kenneth W. Starr, another former solicitor general, said the case will force the high court to confront the tricky issue of whether state or federal law should prevail when the two are in conflict. The court in recent years has shown considerable deference to the states, but Starr is not sure it will do so in this case.

"This will be a very exotic situation," Starr said. "It's a deeply, deeply moving human story."

Rob Kampia, executive director of the Marijuana Policy Project, a group that supports the medicinal use of marijuana, said the facts of the new case are on Raich's side. "I'd say we have a pretty good shot at winning."

The court's decision could well turn on whether the justices decide that Raich's second appeal raises different issues from the first.

Even though the debate over whether marijuana has any medicinal value was far from settled, the Supreme Court ruled in May 2001 that Congress had decided "marijuana has no currently medical accepted use" and that the 1970 federal legislation contained no medical exception. The court also indicated it was concerned about the commercial nature of the cooperatives.

At the time, Ashcroft called the ruling a "victory for enforcement of our nation's drug laws."

In papers filed with the high court in this year's case, acting Solicitor General Paul D. Clement returned to the question about commercial transactions. "Because marijuana trafficking is quintessentially commercial activity," Congress has the right to regulate sales and possession of the drug, whether the transactions occur solely within one state or involve sales across state lines, Clement said.

The point may be critical because Raich asserts that her new sources of marijuana - two people known only as John Doe No. 1 and John Doe No. 2 - do not charge her, thus removing any hint of commercial activity, and also operate solely within California.

"My caregivers grow my medicine specifically for me," Raich says, referring to the Does. "They do not charge me, nor do we trade anything. They grow my medicine and give it to me free of charge."

Clement argues that Congress made no distinction in the 1970 measure between the commercial distribution of marijuana within one state or across state lines. He also argues that local manufacture and distribution of marijuana increases the overall supply and can stimulate commercial activity. "Local users may ultimately sell or divert the drug to others," he said in court papers.

A federal district judge in California ruled in the government's favor in Raich's second case. But last December a three-judge panel of the U.S. 9th Circuit Court of Appeals reversed the district judge. In a 2-1 decision, the appeals judges said "the cultivation, possession and use of marijuana for medical purposes and not for exchange or distribution is not properly characterized as commercial or economic activity."

Ashcroft promptly asked the Supreme Court to take up the issue again. Former Solicitor General Theodore B. Olson, who has since returned to private law practice, said the Justice Department acted because the appeals court ruling partially invalidates the 1970s legislation and "substantially undermines" the government's enforcement of federal drug law.

The National Institute of Drug Abuse, an arm of the federal Department of Health and Human Services, says marijuana use can damage the brain, heart, lungs and immune system and can lead to drug addiction.

The Institute of Medicine, part of the National Academy of Sciences, says that marijuana is "potentially effective" in treating pain, nausea, anorexia, AIDS wasting and other symptoms. The institute has urged further tests of marijuana's medicinal uses, but cautioned that potential beneficial effects are undermined by the fact that patients must inhale "harmful" smoke.

The nine states that have joined California in approving medical uses of marijuana are Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington. Kampia, the Marijuana Policy Project leader, asserts the state actions show growing public support of medicinal marijuana. Montana, the latest state to join the list, is conservative but also takes a "leave-us-alone" attitude toward the government in Washington.

At her home in Oakland, Raich looks at the issue in personal terms. She uses about 2.5 ounces of marijuana a week. If she loses the current case, she may have to leave the country, she said, even though that could separate her from her two teenage children.

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