Justices appear unlikely to OK medical use of marijuana

Justices appear unlikely to OK medical use of marijuana

Stephen Henderson Knight Ridder Newspapers

Washington DC Nov 29, 2004 -- The Supreme Court on Monday appeared unlikely to shield medical marijuana users from federal drug laws, as justices expressed deep reservations about sanctioning even limited use of illegal drugs.

Some justices were skeptical that medicinal pot, which is permitted in 11 states, is always a non-economic enterprise and separate from the illegal drug trade. Others seemed to dispute the idea that Congress could not regulate a substance that is considered contraband.

Five justices seemed inclined to rule against the two California patients who sued to prevent the federal government from confiscating their drugs, with two others appearing more open to either side. Justice Clarence Thomas remained characteristically silent.

Chief Justice William H. Rehnquist, sick with thyroid cancer, was absent from the bench Monday and is not expected back for the court's five remaining argument sessions this year. Rehnquist, who is receiving chemotherapy and radiation treatments, is working at home, court officials said. He is expected to vote in the medical marijuana case and could write the court's opinion.

At issue in the case is whether Congress or the states have the final say over drug policy. The 1970 Controlled Substances Act banned all uses of marijuana, but in the last decade 11 states have adopted laws that permit the use of marijuana with a doctor's recommendation.

The case puts the court's conservatives in an odd position. They are the strongest advocates for a line of cases that has restrained federal authority in favor of state autonomy, yet their social conservatism could make it tough for them to side with pot smokers.

The case also could put the court in the uncomfortable position of denying relief to patients whose suffering is often palpable. Speaking on the high court's steps after the hearing, Diane Monson, one of the two California plaintiffs, said she would not have been able to attend Monday's hearing if she had not medicated herself earlier in the day. She suffers from severe back spasms and cannot take prescription medicines.

Monday's arguments made it clear, though, that the court's conservatives seem inclined to back federal authority in this case and to distinguish it from other instances in which they sided with states. They appeared convinced that marijuana is different because it is almost always related to commerce, which Congress has a constitutional right to regulate, and because it is contraband.

California's 1996 "compassionate use" law is what inspired Monson and Angel Raich, who both are afflicted by chronic illnesses and allergic reactions to traditional drugs, to begin using marijuana. They smoke it, inhale as a vapor or rub it on themselves as a balm.

After Drug Enforcement Administration officers raided Monson's house and confiscated her homegrown marijuana in 2002, the two women sued.

Randy Barnett, the women's lawyer, told the high court that medical marijuana falls outside the commercial drug activity that Congress has a constitutional interest in regulating or prohibiting. He added that the government's war on drugs is not undercut by state efforts to help sick people feel better.

"This is different," he said. "It's a narrow class of people growing it for themselves or having a provider grow it for them."

Justice Anthony Kennedy, however, wondered how the court could assume that all patients were growing marijuana themselves instead of buying from drug dealers.

"Can't we infer from the enormous commercial market that possession of the drug is proof of participation in the market?" Kennedy asked.

"Maybe it is and maybe it isn't," Barnett said.

Justice Antonin Scalia seized on that point.

"But Congress has done this in other areas, like with endangered species," he said. "You can't have eagle feathers, no matter where you got them, for example."

Acting Solicitor General Paul Clement said that marijuana has a "high potential for abuse" and "no approved medicinal use." He urged the court to uphold the federal law.

Marijuana has "no future, really, in medicine," Clement argued, and when it comes to contraband, "any little island frustrates the goal of stamping out" drugs.

Justice Stephen Breyer suggested that perhaps California and other states had acted too quickly to accept the idea of medical marijuana, and the proper channel might be through the Food and Drug Administration, which could elect to shift marijuana from a list of banned drugs to a list of controlled substances.

"They never went to the FDA to try to get marijuana rescheduled," Breyer said. "So how can we take for a fact that medical marijuana actually exists?"