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California Women Make a New Case for Medical Marijuana

Aghast at federal agents' raids after 9/11, they sue the government, saying the commerce clause of the Constitution doesn't apply to the pot they use.

November 28, 2004|Eric Bailey | Times Staff Writer

OAKLAND — She is fast becoming America's best-known pot patient, the woman whose case may help decide whether marijuana has an unfettered future as medicine.

Angel Raich takes her case before the nation's highest court Monday in a bid to keep the federal government from threatening her use of the leafy herb.

To the U.S., cannabis is illegal for any use. To Raich, it is a lifesaver.

The U.S. Supreme Court will wade into a thicket rife with confusion since California voters approved the nation's first medical marijuana ballot measure in 1996.

Facing the high court will be various issues: the right of a state to sidestep federal laws, the ability of Congress to regulate interstate commerce, and the needs of a nation to police illegal drugs versus the needs of the seriously ill.

Bracketing the legal arguments are the stories of Raich, a 39-year-old mother who suffers from more than a dozen ailments she says don't respond to traditional treatments, and her co-plaintiff, Diane Monson, 47, of Butte County.

Monson started using cannabis half a dozen times a day to fight chronic back spasms after her doctor recommended it when other therapy failed.

"I would be dead right now" without cannabis, Raich contends.

The roots of her battle date from the weeks after the terrorist attacks of Sept. 11, 2001. At that time, Raich, a mother of two who had been using marijuana for several years to combat illnesses including a brain tumor, fibromyalgia and a chronic wasting condition, watched in disbelief as federal drug agents raided and shut down several medical marijuana dispensaries.

Aghast at what she and many other "medpot" activists viewed as a misappropriation of federal resources better used in the war against terrorism, Raich and her husband, Oakland attorney Robert Raich, decided something must be done. They recruited Monson, who had had her home raided and six medical pot plants uprooted by federal agents, and filed a lawsuit in October 2002 against the U.S. government.

They asked that the federal government be blocked from arresting either woman, suing them civilly and seizing their medical cannabis or property through asset forfeiture.

Prior lawsuits had claimed that marijuana patients should be allowed to use a federally outlawed drug out of medical necessity, but attorneys for the two women took a different tack -- basing their argument on the commerce clause of the Constitution.

Under the Constitution, Congress can regulate the flow of commercial products and services between states. That bedrock principle was applied when Congress adopted U.S. drug laws in 1970 against trafficking of marijuana and illegal narcotics, such as LSD and heroin.

Raich and Monson argued that the commerce clause did not apply to their use of medical marijuana. Monson grows her marijuana at home with seeds from the prior year's crop -- nothing ever crosses state lines.

Likewise, Raich says her medical pot is essentially homegrown. The cannabis is donated by two California growers -- named only John Doe No. 1 and No. 2 in the lawsuit -- who use seeds, soil and water from the Golden State.

What might seem legal sleight of hand has become a knockdown fight largely over states' rights.

When the pair prevailed before the U.S. 9th Circuit Court of Appeals a year ago, the U.S. appealed. As federal lawyers see it, the federal Controlled Substances Act trumps state laws authorizing medical marijuana (nine states besides California have legalized cannabis as medicine).

Even in cases where illegal drugs are not trafficked between states, federal attorneys argue, the local cultivation, distribution and possession of pot cannot be distinguished from interstate trafficking. Government lawyers argue that U.S. drug agents would face "staggering" difficulties trying to differentiate between illegal drugs transported between states and narcotics that never cross a state line.

To back up the argument, the U.S. cites the 1942 case involving farmer Roscoe Filburn and his wheat crop.

The U.S. Supreme Court upheld a fine against Filburn for growing more wheat than allowed under a federal cap, which was put in place to regulate interstate commerce of the crop. Filburn argued that the excess wheat never left his farm, but was used to bake bread and feed his animals.

Federal lawyers argue that the medical marijuana of Monson and Raich, much like Filburn's wheat, remains a crop subject to federal authority even if it doesn't enter the stream of commerce.

The lawyers say in a brief that medical marijuana has a substantial effect on interstate commerce, with excess pot potentially diverted to illegal trade or patients turning to dealers when their supplies run short.

Raich and Monson have received support and opposition -- some expected, some a bit surprising.

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