Monday, November 22, 2004

The Supreme Court next week will hear the case of an ailing woman’s battle with the federal government over her possessing marijuana to treat herself, in a decision that could determine the direction of the medicinal pot movement.

The case, to be heard Nov. 29, stems from the 2002 seizure by federal agents of marijuana plants grown by a California woman who claimed the weed was for medicinal purposes, which is legal under state law.

Diana Monson, a patient who was prescribed the marijuana to alleviate back-spasm pain, and another medicinal patient, Angel McClary Raich, sued the federal government. They claimed their growing and use of the drug was not covered under the federal Controlled Substances Act.

The two won a preliminary injunction last year in the 9th U.S. Circuit Court of Appeals, which found their cultivation and use of marijuana to be noncommercial and outside federal jurisdiction.

As voters in more states have approved measures to allow marijuana cultivation and use for medicinal purposes, the federal government has moved to arrest people engaging in that activity. Ten states have medicinal-marijuana provisions. Montana most recently joined the list with voter approval earlier this month.

“A decision that upholds the Ninth Circuit Court would allow individuals to grow their own cannabis in states that allow it,” said Randy Barnett, a professor of constitutional law at the Boston University School of Law, who will argue the case for Miss Raich and Miss Monson.

“But more than that, this case is about federalism and that idea that this application of the Controlled Substances Act is an overreach of the federal government,” Mr. Barnett said. “The state has authorized the use of marijuana for medical purposes. I am representing two clients who are suffering. This is not a case connected to the war on drugs, because my clients are not taking part in trafficking or using recreational drugs.”

In its appeal to the Supreme Court, the federal government argues that its actions were true to the law, saying that “Congress’s conclusions that the local manufacture, distribution, and possession of drugs, including marijuana, are significantly linked to the commerce in drugs regulated under the statute and that comprehensive regulation of that local activity is essential to effectuate control of the interstate drug market.”

Further, it added: “The [Controlled Substances Act] constitutionally regulates the commercial market in marijuana, which is international and interstate in scope.”

A spokesman for the White House Office of National Drug Control Policy, which sets drug policy for the administration, declined to comment on the pending case.

In a report published this month, though, the office said movements to legalize marijuana for medicinal use “are led not by medical professionals or patients-rights groups, but by pro-drug donors and organizations in a cynical attempt to exploit the suffering of sick people.”

The most outspoken supporters of medicinal marijuana are well-organized pro-pot lobbies, including the National Organization for the Reform of Marijuana Laws and the Marijuana Policy Project.

“There is simply no constituency in this country for arresting and jailing people with cancer, AIDS, [multiple sclerosis] or other illnesses who find relief from medical marijuana,” said Bruce Mirken, a spokesman for the Marijuana Policy Project. “So, whatever the Supreme Court does, the Bush administration is on the losing side of history.”

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