High court takes on
medical marijuana case
SAN FRANCISCO >> The U.S. Supreme Court said yesterday it would decide whether the government has the authority to prevent sick patients from using marijuana with a doctor's recommendation.
The California case tests whether the federal government, which maintains there is no medical benefit to marijuana, can block sick patients from using cannabis and prosecute them or their suppliers.
Marijuana in isles
Hawaii's law permits medical marijuana use with a doctor's recommendation but limits users to possessing three mature plants and four immature plants at any time, plus one ounce of processed marijuana per mature plant. Doctors cannot prescribe marijuana, but can certify a patient has a qualifying medical condition.
The case affects Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington state. They have medical marijuana laws similar to California's allowing patients to grow, use or receive marijuana if they have a doctor's recommendation.
The case began after several raids on California medical marijuana clubs and individual growers in the last few years. Two ill medical marijuana patients, fearing their supplies might dry up, sued Attorney General John Ashcroft and ultimately won injunctions barring the Justice Department from prosecuting them or their suppliers.
"I'm real excited, and I'm real nervous and real afraid because my life is on the line here," said Angel Raich, the 38-year-old Oakland woman who brought the case. She suffers from scoliosis, a brain tumor, chronic nausea, fatigue and pain.
She and her doctor say marijuana, which she uses every few hours, is the only thing that keeps her alive after prescription drugs failed.
After the Bush administration lost the Raich case, it appealed to the justices, arguing that state laws making exceptions for medical marijuana are trumped by federal drug laws.
Solicitor General Theodore Olson told the court that Congress passed the Controlled Substances Act to control "all manufacturing, possession and distribution of any" drug it lists, including marijuana.
But the 9th U.S. Circuit Court of Appeals, in placing an injunction against prosecuting Raich and another woman for using marijuana, ruled in December that the federal law outlawing marijuana does not apply to patients whose doctors have recommended the drug.
Judge Harry Pregerson wrote that states are free to adopt medical marijuana laws so long as the marijuana is not sold, transported across state lines or used for nonmedicinal purposes.
Pregerson wrote that using marijuana on a doctor's advice is "different in kind from drug trafficking." The court added that "this limited use is clearly distinct from the broader illicit drug market."
But Olson told the justices that the states are not free to regulate controlled substances "without any federal regulation."
The high court will hear the case sometime next winter.
Patients' rights groups immediately weighed in on the issue.
"The Supreme Court has a chance to protect the rights of patients everywhere who need medical cannabis to treat their afflictions," said Steph Sherer, executive director of Americans for Safe Access.
Doctors are already free to recommend marijuana. The high court refused last fall to hear a separate Bush administration appeal of an order blocking the Justice Department from punishing physicians for discussing marijuana with patients who use it to help them eat, relieve pain and to limit seizures.
The case the justices agreed to review is an outgrowth of their 2001 decision, in which the court said that medical marijuana clubs could not dole out medical marijuana based on the so-called "medical necessity" of patients, even if they have a doctor's recommendation.
The justices addressed only the issue of a so-called "medical necessity defense" being at odds with the Controlled Substances Act, which says marijuana, like heroin and LSD, has no medical benefits and cannot be dispensed or prescribed by doctors.
In that decision, Justice Clarence Thomas wrote that the Supreme Court left several questions unresolved, including whether the government could interfere with the states to make their own medical marijuana laws.
Gerald Uelmen, a scholar at the Santa Clara University School of Law, said Thomas' opinion invited new challenges.
"The court opened this door," he said.
