Early today, June 6, 2005, the US Supreme Court ruled in the case of Gonzales versus Raich that medical marijuana patients and growers can be arrested and prosecuted by the federal government in states that have enacted laws legalizing medical marijuana.
The 6-3 decision is seen as a major blow to the medical marijuana movement, to the two women who carried the case forward, and to the rights of states to regulate activities within their own borders.
The decision will impact California and other states that permit medical marijuana: Alaska, Arizona, Colorado, Hawaii, Maine, Maryland, Nevada, Oregon, Vermont and Washington.
The case began in October, 2002 when California medical marijuana patient Angel Raich filed suit against then-Attorney General John Ashcroft and the Justice Department, seeking to prevent the DEA from invading California to arrest medpatients and their growers.
Angel Raich is an Oakland resident suffering from scoliosis, a brain tumor, chronic nausea, fatigue and pain, who was paralyzed until she started using medical cannabis.
Raich was joined in the suit by Diane Monson, a Butte County resident who had a medical doctor’s recommendation to use marijuana for pain relief and spasms. Monson, an accountant who lives near Oroville, California, has degenerative spine disease and grows marijuana in her backyard.
The DEA had been raiding California medpot clubs that Raich relied on, and she felt she had to take legal action to prevent the feds from interfering with her supply of medicine. Monson was raided by the DEA, who seized her six marijuana plants despite the opposition of Butte County District Attorney Mike Ramsey; he said the feds had no business interfering in his county’s medpot situation.
In December, 2003, the 9th Circuit Court of Appeals ruled in favor of Raich and Monson, and issued a preliminary injunction that prevents the DEA from enforcing the federal Controlled Substances Act (CSA) in California if the CSA is in conflict with state medpot law.
The ruling stated that the court believed Raich and Monson had validly argued that the CSA was an “unconstitutional exercise” of Congressional power. The Court issued an injunction, as follows:
“[The Justice Department], and their agents and officers, and any person acting in consort with them, are hereby enjoined from arresting or prosecuting Plaintiffs Angel McClary Raich and Diane Monson, seizing their medical cannabis, forfeiting their property, or seeking civil or administrative sanctions against them with respect to the intrastate, noncommercial cultivation, possession, use, and obtaining without charge of cannabis for personal medical purposes on the advice of a physician and in accordance with state law, and which is not used for distribution, sale or exchange.”
The injunction, along with a favorable ruling regarding the Wo/Men’s Alliance for Medical Marijuana (WAMM) in Santa Cruz, spurred a burgeoning medical marijuana industry in states that had legalized medpot and that were in the jurisdiction of the 9th Circuit Court. The DEA and local police and prosecutors decided to slow down their attacks on medical marijuana in legal states until today’s decision. It is expected that massive and ugly new DEA raids will now commence in medpot states.
The US Supreme Court heard oral arguments in the case in November, 2004 and took an unusually long amount of time to issue its ruling, which most courtwatchers expected would have been issued months ago.
Medical marijuana insiders who attended the Supreme Court hearings predicted that Raich would lose, saying that even the Court’s “liberal” judges appeared hostile to medical marijuana, and that the Court would never risk displeasing the Bush administration and the drug war lobby by backing peoples’ rights to medicate with plants.
During the November hearings, Justice David Souter said ruling in favor of Raich would cause rampant marijuana use by recreational tokers who had fake doctor’s recommendations. Justice Stephen Breyer, said advocates for medical marijuana should first ask the DEA and the federal Food and Drug Administration to reclassify marijuana on their “schedule of controlled substances.”
The DEA contends that marijuana is as bad as heroin and has no medical usefulness. The FDA and other federal agencies have refused to allow neutral clinical testing of marijuana to determine its medical effectiveness.
In ruling against states’ medical cannabis laws, the Court had to go against one of the bedrock principles of conservatives such as President Bush, the principle that says states get to decide their own laws regardless of federal law, as long as the state laws do not govern actions that have “interstate” implications.
In cases where conservative states have outlawed abortions for teenaged girls raped by their fathers, or have allowed landowners to rape nature in ways that violate federal environmental laws, the Court and conservatives back states’ rights.
The Court’s conservatives have broadened states’ rights in recent years, invalidating federal laws that banned gun possession near schools and violence against women, ruling that those activities were “too localized” to be considered as activities prohibited by federal lawmakers.
In the 2000 election, Bush said medical marijuana’s legality should be decided by individual states. But the drug war exception to the constitution created by the Supreme Court during the last 30 years is obviously still in place, and today’s ruling against Raich proves it.
In 2001, the Court similarly ruled against medical marijuana and California’s Prop. 215, in a case involving the Oakland Cannabis Buyers’ Club. Raich’s husband Robert Raich, an attorney, was involved in that case and the current one.
Supreme Court Justice John Paul Stevens wrote the majority 6-3 Raich decision. As predicted, he said medical marijuana advocates would have to persuade lawmakers in Congress to change federal marijuana laws, rather than relying on the Court to rule in favor of state medpot laws.
Stevens wrote that medical marijuana advocates should rely on “the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress.”
Writing a dissenting opinion, Justice Sandra Day O’Connor said states have the right to make laws regarding activities that do not cross state lines. Joined with her in dissent were two extremely conservative jurists who usually are no friend to “liberal” causes- Chief Justice William Rehnquist and Justice Clarence Thomas.
“This case exemplifies the role of states as laboratories,” O’Connor wrote. “Relying on Congress’ abstract assertions, the court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some states to regulate medical marijuana differently. The states’ core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens.”
O’Connor said that even though she would have opposed California’s medical marijuana law if she was a voter or legislator there, that the Court was violating the constitution by endorsing laws that make it a “federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use” without fear of arrest, raids or other intrusion by federal authorities.
Today’s ruling has created predictable reactions. Hardline drug war fascists such as Calvina Fay and her Drug Free America Foundation say the Court’s decision “strikes against medical fraud and the chaos that would result from allowing drug legalization advocates to make drug policy.”
“This is an important victory for sound drug policy, but more importantly, it is a victory for the future of our children and the hope for a drug-free America,” Fay said.
Another drug warrior, Eric Voth, said the ruling “upholds the long-established scientific fact that marijuana is not medicine, and it reaffirms that medicine by popular vote is a dangerous process that bypasses the FDA, reduces consumer protections and jeopardizes sick patients. There has been much disinformation about so-called medical marijuana but the truth is it’s an extremely harmful drug that can put the future of our children at risk.”
The American Civil Liberties Union urged state and local governments to continue protecting patients, growers and caregivers.
“The power of state governments to enact and enforce state medical marijuana laws is not affected by the Supreme Court’s ruling,” said Allen Hopper, a staff attorney with the ACLU’s Drug Law Reform Project. “State laws allowing the use of medical marijuana still offer patients significant protection.”
Valerie Corral, who founded the California-based Wo/Men’s Alliance for Medical Marijuana (WAMM) in Santa Cruz, said today’s ruling strikes fear in the hearts of sick and dying people.
The DEA raided WAMM in 2002. After the Ninth Circuit’s ruling that protected Raich, a federal district court granted an injunction protecting WAMM from further federal raids and prosecution. Now, Corral says that the DEA could come back to harm patients again.
“Since the DEA raided us, 150 WAMM members have died. Today’s ruling is very disturbing,” said Valerie Corral. “I and all of the patients in WAMM are in a terrible predicament, where we again have to choose between breaking federal law and taking our medicine.”
In regards to Breyer’s advice that medpot advocates should get the FDA and DEA to speed up the regulatory approval process, the ACLU’s Hopper said “the government’s idea of ‘medicine by regulation,’ is to obstruct research” that would prove the efficacy and safety of medical marijuana.
In October 2002, a group of medical marijuana advocacy organizations, called the Coalition for Rescheduling Cannabis, formally started the regulatory reclassification process by asking DEA to make marijuana more available for research and medical use.
Currently, marijuana is grouped along with substances like heroin in “Schedule One.” This classification ensures that medical access to cannabis is illegal, and places severe restrictions on medical pot research.
The Coalition wants cannabis placed in a less restrictive schedule so doctors can prescribe it, so state laws that have legalized med-pot will not conflict with federal prohibition, and so that research will be easier to conduct.
The group presented a legal petition that officially asks the DEA to consider all marijuana scientific evidence. Much of the evidence and reasoning in the petition was put together by marijuana researcher Jon Gettman, PhD.
Gettman previously sent the same petition to the DEA himself, but the agency and a federal court rejected his petition, claiming that because Gettman himself is not a med-pot user, he did not have proper “standing” to demand consideration.
The Coalition came together when Gettman aligned himself with a variety of individuals and non-profit organizations, including the American Alliance for Medical Cannabis, Americans for Safe Access, California NORML, the Drug Policy Forum of Texas, Iowans for Medical Marijuana, Oakland Cannabis Buyers Cooperative, and Patients Out of Time.
In April 2003, the DEA notified the Coalition that the agency has accepted the group’s petition as a legitimate administrative request, and that the agency will evaluate the group’s evidence and arguments. In the last two years, the petition has moved slowly through various bureaucracies, but Coalition spokespersons say it is still on track for consideration, and that only blatant fraud on the part of federal agencies would result in cannabis not eventually being reclassified to a less-restrictive schedule.
“We don’t know how long it will take them to review what we’ve put together, or how fair they will be in considering it, but now that they have accepted the validity of the petition, they have to do the review,” explained Al Byrne of Patients Out of Time. “This means that at the very least they have to look at all the evidence, and then if they want to continue to have marijuana on Schedule One, they have to provide compelling evidence to counter our evidence. The truth is on our side, because marijuana is clearly an effective medicine.”
American Alliance for Medical Cannabis: www.letfreedomgrow.com Americans for Safe Access: www.safeaccessnow.org California NORML: www.canorml.org Drug Policy Forum of Texas: www.dpft.org Iowans for Medical Marijuana: www.druglibrary.org/olsen/MEDICAL/IOWA/iowa.html Oakland Cannabis Buyers Cooperative: www.rxcbc.org Patients Out of Time: www.medicalcannabis.com