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The Nation

Medical Marijuana to Get Justices' Review

June 29, 2004|David G. Savage | Times Staff Writer

WASHINGTON — The Supreme Court announced Monday that it would hear the Bush administration's claim that federal drug agents have the authority to arrest seriously ill Californians who use homegrown marijuana to relieve their pain.

The court agreed to hear an appeal filed by Atty. Gen. John Ashcroft, who contends that federal law prohibits the use of marijuana "in all instances."

The case, to be heard in the fall, is a clash between the strict federal drug laws and the California initiative that allows patients to use marijuana on the advice of their doctor. It will also determine the fate of similar laws in eight other states.

The case focuses not on whether using marijuana makes medical sense, but whether the federal authority extends to regulating a plant that is grown at home.

The U.S. Constitution says Congress and the federal government have the power to regulate "commerce among the states." This is the basis for most federal regulatory laws.

But defenders of the medical marijuana law in California questioned how that federal power can be extended to cover plants that are grown by a patient for his or her own use.

"It is a pretty far-fetched argument for them to say this involves interstate commerce, because there is no commerce and no interstate activity," said Oakland attorney Robert Raich, whose wife, Angel, is one of two plaintiffs in the case.

The other, Diane Monson, suffers from a degenerative disease of the spine. Like Angel Raich, who has an inoperable brain tumor, Monson said marijuana had been especially effective at easing her pain and restoring her appetite.

In August 2002, however, U.S. drug agents raided Monson's home and destroyed her six cannabis plants.

Late last year, the U.S. 9th Circuit Court of Appeals agreed that the federal agents had overstepped their authority and issued an order that bars the Drug Enforcement Administration from enforcing the drug laws against patients whose marijuana is grown at home.

The "noncommercial cultivation, possession and use of marijuana for personal medical purposes" is protected under California law and is beyond the federal authority, said Judge Harry Pregerson in a 2-1 decision. It is "different in kind from drug trafficking," he added.

The Justice Department appealed that decision, and on Monday the Supreme Court said it would hear the case, Ashcroft vs. Raich, during the court's next term.

"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 the medical-marijuana advocacy group Americans for Safe Access. "Too many have gone to prison, and too many have been denied access to the medication their doctors recommend."

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