Medical Pot Users’ Hopes Dim After Ruling By MATTHEW ARTZ

Friday June 10, 2005

Medical marijuana users have few promising avenues to turn to after Monday’s Supreme Court decision upholding the federal government’s authority to prosecute sick people who use and grow marijuana, according to legal experts and legislative staffers. 

Following the ruling, Angel Raich, an Oakland resident and a co-plaintiff in the case, said she would next head to Washington, D.C. to lobby Congress to change federal drug laws. 

Lawmakers are scheduled to vote next week on an amendment to the annual Justice Department appropriations bill that would forbid federal agents to use tax dollars to raid or persecute medical marijuana patients in the ten states that have legalized its use. 

Last year, despite the support of nearly the entire Bay Area delegation, including Rep. Barbara Lee (D-Oak), the amendment lost 268-148. The previous year it lost 273-152. 

A more sweeping measure, introduced for the 11th consecutive year, has even less chance for passage, according to its author. The “States’ Rights To Medical Marijuana Act” drafted by Barney Frank (D-Mass) would give states full authority to enact and implement their own medical marijuana laws without federal interference. 

The bill, however, which has 36 co-sponsors, including Rep. Lee, has never made it to a committee vote and Frank’s press secretary Kay Gibbs didn’t think the publicity surrounding Monday’s court ruling would garner it more support. 

“Congressman Frank has said that people are afraid of this legislation,” she said. “He’s not optimistic that there will be any increase in support.” 

The Supreme Court ruled Monday that Congress’s power to regulate commerce among states gave it the authority to prosecute growers and users of medical cannabis in states where the practice is legal according to state law. 

With their most persuasive legal argument rejected, Raich’s attorneys said Monday they would renew their legal argument on grounds that Raich, who suffers from an inoperable brain tumor, chronic pain and a wasting syndrome, had a constitutional right to use the drug that best eases her pain. 

The legal case is not impossible, but definitely “an uphill battle,” said Boalt Hall constitutional Law professor Jesse Choper. Referencing two right-to-die cases, Choper said it might be possible to persuade five members of the high court that in the cases where a patient is in extreme pain or facing a terminal illness, there is a constitutional right to take pain killers. 

Marsha Cohen, a pharmaceutical law professor at Hastings School of Law, was more pessimistic about Raich’s chances to renew her legal fight. She said federal courts have rejected the rights of patients to have access to illegal medicine. The court’s majority ruling, she added, referenced one case in which the high court rejected a petition for cancer sufferers to have access to a drug that had not been approved by federal regulators. 

“The court said [the federal government] can make that judgment,” Cohen said. 

The best option for medical cannabis users, she added, would be to petition the federal Drug Enforcement Agency to once again consider rescheduling marijuana as a less restricted substance.  

The Federal Drug Enforcement Agency classifies marijuana alongside heroin and cocaine as a highly addictive drug with no medical benefit. The DEA rejected an attempt in 2001 to reclassify the drug filed by medical cannabis advocate John Gettman and High Times Magazine.›