The Supreme Court questioned whether state medical marijuana laws might be abused by people who aren’t really sick as it debated Monday whether the federal government can prosecute patients who smoke pot on doctors’ orders.
The stakes are high on both the government level — 11 states have passed medical marijuana laws since 1996 — and the personal.
In the courtroom watching the argument was Angel Raich, an Oakland, Calif., mother of two who said she tried dozens of prescription medicines to ease the pain of a brain tumor and other illnesses before she turned to marijuana. She and another ill woman, Diane Monson, filed a lawsuit to protect their access to the drug after federal agents confiscated marijuana plants from Monson’s yard.
Their attorney, Randy Barnett of Boston, told the justices that his clients are law-abiding citizens who need marijuana to survive. Marijuana may have some negative side effects, he said, but seriously sick people are willing to take the chance because the drug helps them more than traditional medicines.
The justices refused three years ago to protect distributors of medical marijuana from federal anti-drug charges. They are confronting a more personal issue this time — the power of federal agents to go after sick people who use homegrown cannabis with their doctors’ permission and their states’ approval.
Other laws at risk
A defeat for the two California women might undermine laws passed by California and 10 other states and discourage other states from approving their own.
A loss for the government, on the other hand, could jeopardize federal oversight of illegal drugs and raise questions in other areas such as product safety and environmental activities. A Bush administration lawyer told the justices they would be encouraging people to use potentially harmful marijuana if they were to side with the women.
“If they’re right, then I think their analysis would extend to recreational use of marijuana, as well as medical use of marijuana, and would extend to every state in the nation, not just those states that made it lawful,” said Paul Clement, acting solicitor general.
Justice David H. Souter said an estimated 10 percent of people in America use illegal drugs, and states with medical marijuana laws might not be able to stop recreational users from taking advantage.
‘We face a mess’
Justice Stephen Breyer said the government makes a strong argument that as many as 100,000 sick people use marijuana in California, and “when we see medical marijuana in California, we won’t know what it is. Everybody’ll say, ‘Mine is medical.’ Certificates will circulate on the black market. We face a mess.”
And Justice Antonin Scalia said there are many people with “alleged medical needs.”
Despite the tenor of the debate, the case is hard to predict. The justices will rule before next summer.
Justice Ruth Bader Ginsburg said the federal government has a stake in interstate commerce, but with the California medical marijuana patients: “Nobody’s buying anything. Nobody’s selling anything.”
Her colleague, Justice Sandra Day O’Connor, observed that homegrown medical marijuana never makes it to the interstate market.
An appeal to ailing Rehnquist
Conservatives like Chief Justice William H. Rehnquist, Justice Clarence Thomas and Scalia generally have supported states’ rights to set their own policies.
Rehnquist, who is undergoing treatment for thyroid cancer, missed Monday’s argument and is not expected to return to the court until January, at the earliest.
Raich said she hopes the 80-year-old chief justice’s chemotherapy treatments “would soften his heart about the issue.”
“I think he would find that cannabis would help him a lot,” said Raich, who uses marijuana every few hours.
References to drug addiction problem
Breyer said supporters of marijuana for the ill should take their fight to federal drug regulators before coming to the Supreme Court, and several justices repeatedly referred to America's drug addiction problems.
Dozens of people, some with blankets, camped outside the high court in order to gain access to the debate. Groups such as the Drug Free America Foundation fear a government loss will undermine campaigns against addictive drugs.
The high court heard arguments in the case of Raich, who tried dozens of prescription medicines to ease the pain of a brain tumor and other illnesses before she turned to pot.
Supporters of Raich and Monson argue that people with the AIDS virus, cancer and other diseases should be able to grow and use marijuana.
Ten states have medical marijuana laws
Besides California, nine other states allow people to use marijuana if their doctors agree: Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington. Arizona also has a law permitting marijuana prescriptions, but no active program.
The San Francisco-based 9th U.S. Circuit Court of Appeals had ruled against the government in a divided opinion that found federal prosecution of medical marijuana users is unconstitutional if the marijuana is not sold, transported across state lines or used for non-medicinal purposes.
Lawyers for Raich and Monson contend the government has no justification for pursuing ill small-scale users. Raich, an Oakland, Calif., mother of two teenagers, has a brain tumor, scoliosis, chronic nausea and other illnesses. Monson, a 47-year-old accountant who lives near Oroville, Calif., has degenerative spine disease and grows her own marijuana plants in her backyard.
The Bush administration argues that Congress has found no accepted medical use of marijuana and needs to be able to eradicate drug trafficking and its social harms.
The Supreme Court ruled three years ago that the government could prosecute distributors of medical marijuana despite their claim that the activity was protected by "medical necessity."
Dozens of groups weigh in
Dozens of groups have weighed in on the latest case, which deals with users and is much more sweeping.
Alabama, Louisiana and Mississippi, conservative states that do not have medical marijuana laws, sided with the marijuana users on grounds that the federal government was trying to butt into state business of providing "for the health, safety, welfare and morals of their citizens."
Some Republican members of Congress, meanwhile, urged the court to consider that more than 20,000 people die each year because of drug abuse. A ruling against the government, they said, would help drug traffickers avoid arrest, increase the marijuana supply and send a message that illegal drugs are good.
California's 1996 medical marijuana law allows people to grow, smoke or obtain marijuana for medical needs with a doctor's recommendation.
Medical marijuana was an issue in the November elections. Montana voters easily approved a law that shields patients, their doctors and caregivers from arrest and prosecution for medical marijuana. But Oregon rejected a measure that would have dramatically expanded its existing medical marijuana program.
The Supreme Court case is Ashcroft v. Raich, 03-1454.