Supreme Court Hears Oral Arguments in California Medical Marijuana Case
U.S. Supreme Court justices on Monday offered a "mostly skeptical reception" to arguments from medical marijuana advocates in a case that will determine whether the federal government can "still ban possession of the drug in states that have cut or eliminated sanctions for using it" to treat symptoms of chronic illnesses, the Washington Post reports (Lane, Washington Post, 11/30).
The case involves a lawsuit filed by two California residents: Angel Raich, who has a brain tumor, life-threatening weight loss, a seizure disorder and nausea; and Diana Monson, who has severe back pain and constant muscle spasms caused by a degenerative spine disease. After Drug Enforcement Administration agents in 2002 seized and destroyed marijuana plants that Monson possessed -- California law allows residents to possess and use marijuana for medical purposes with a recommendation from a physician -- the two women sued Attorney General John Ashcroft to prevent future raids.
In December 2003, the 9th U.S. Circuit Court of Appeals ruled that federal prosecution of medical marijuana patients is unconstitutional if the drug is not sold, transported across state lines or used for nonmedical purposes. The case, Ashcroft v. Raich, focuses on whether the federal government has the authority to regulate marijuana plants grown at home. Under the Constitution, the federal government has the authority to regulate "commerce among the states." However, Judge Harry Pregerson wrote in the appeals court decision that "noncommercial cultivation, possession and use of marijuana for personal medical purposes" is "different in kind from drug trafficking," is protected under California law and does not come under federal authority.
Washington state, Oregon, Alaska, Hawaii, Nevada, Colorado, Maine, Vermont and Montana have similar medical marijuana laws (California Healthline, 11/29).
Acting Solicitor General Paul Clement on Monday argued that states do not have the ability to contain illicit drugs, such as marijuana, within their borders. He added that states cannot create a "little island of lawful possession" because such laws undermine congressional efforts to end illicit drug trafficking (Lash, Atlanta Journal-Constitution, 11/30).
In addition, Clement said that the federal government should have authority over the use of marijuana for medical purposes because the practice involves economic activity -- "the possession, manufacture and distribution of a valuable product for which there is, unfortunately, a ready market" (Egelko, San Francisco Chronicle, 11/30). He also said that states are "a little bit optimistic to think none of these marijuana plants grown for medical use will be diverted to the interstate market" (Gibson, Baltimore Sun, 11/30).
Randy Barnett, an attorney for the plaintiffs, argued that because Monson grew her own marijuana and Raich received the drug from two caregivers at no cost, the practice involved no economic activity (MacDonald, Hartford Courant, 11/30). According to Barnett, a ban on "a class of activity that is noneconomic and wholly intrastate" is part of the "regulatory regime" of the federal government.
He also argued that because few individuals would qualify to use medical marijuana, the practice would have a "trivial" effect on the market for the drug (Greenhouse, New York Times, 11/30). He added that state medical marijuana law would not affect efforts by the federal government to end illicit drug trafficking. "This is different. It's a narrow class of people growing it for themselves or having a provider grow it for them," he said (Henderson, Philadelphia Inquirer, 11/30).
Barnett said, "When people are sick and people are suffering and people are dying, they may be willing to run the risk of these long-term harms in order to get the immediate relief, the lifesaving relief that cannabis has demonstrably been able to provide" (Holland, AP/Akron Beacon Journal, 11/30).
A physician for Raich also testified that because other treatments had failed to help her, she might die without marijuana.
Justice Stephen Breyer said that the plaintiffs should have taken their case to FDA to have marijuana removed from the list of controlled substances before they used the drug. "That would seem to be the most obvious way to deal with this. Medicine by regulation is better than medicine by referendum," Breyer said (Savage, Los Angeles Times, 11/30). He added, "I have to take this case on the assumption that there is no such thing as medical marijuana that is special and beneficial" (Washington Post, 11/30).
Justice David Souter said, "This whole argument boils down to how many people are involved" (Los Angeles Times, 11/30). He added that tens of thousands of chemotherapy patients in California could use marijuana to treat side effects, and those individuals would create a market for the drug that "show(s) the activity is economic" (Willing, USA Today, 11/30).
Justice Anthony Kennedy said the amount of illegal marijuana trade in the United States should allow Congress to regulate the use of the drug at the state level (Atlanta Journal-Constitution, 11/30). He also questioned whether medical marijuana laws would make the drug less expensive and more available (Anderson, Wall Street Journal, 11/30).
Justice Antonin Scalia compared the possession of medical marijuana to the possession of eagle feathers or ivory tusks, which is illegal. "We can't tell whether (those items) came through interstate commerce or not ... Why is that different from this?" he asked (Los Angeles Times, 11/30). Scalia and Kennedy compared the case to a Supreme Court case from 1942 in which the court ruled that the federal government can regulate parts of wheat crops grown for personal consumption (San Francisco Chronicle, 11/30).
However, Justices Sandra Day O'Conner and Ruth Bader Ginsburg appeared to support the arguments of the plaintiffs (USA Today, 11/30). "As I understand it, none of this homegrown marijuana will be on any interstate market," O'Conner said, adding, "And it is in the area of something traditionally regulated by states. This limited exception (to the drug laws) is a noneconomic use -- growing for personal use" (Los Angeles Times, 11/30). Ginsburg said that "nobody's buying anything -- nobody's selling anything."
According to the Pittsburgh Post-Gazette, Justice John Paul Stevens also "seemed open to Barnett's arguments that the intrastate growth of marijuana for medicinal use was a special case" (McGough, Pittsburgh Post-Gazette, 11/30).
Chief Justice William Rehnquist, who continues to receive treatment for thyroid cancer, did not attend arguments on Monday but likely will participate in the case (Baltimore Sun, 11/30).
Several broadcast programs recently reported on the medical marijuana case:
- ABCNews' "World News Tonight": The segment includes comments from Raich and Calvina Fay, executive director of the Drug-Free America Foundation (Medrano, "World News Tonight," ABCNews, 11/29).
- CBS' "Evening News": The segment includes comments from Raich and Randy Barnett, an attorney for the medical marijuana users (Andrews, "Evening News," CBS, 11/29). The complete segment is available online in RealPlayer.
- CNN's "Crossfire": Guests on the program included David Evans, director of the Drug-Free Schools Coalition, and Steve Fox of the Marijuana Policy Project (Begala/Novak, "Crossfire," CNN, 11/29). The complete transcript is available online.
- CNN's "Paula Zahn Now": Guests on the program included Barnett and Fay (Zahn, "Paula Zahn Now," CNN, 11/29). The complete transcript is available online.
- KCRW's "Which Way, L.A.?": The segment includes comments from David Pike, the Supreme Court reporter for the Los Angeles Daily Journal (Olney, "Which Way, L.A.?," KCRW, 11/29). The complete segment is available online in RealPlayer.
- KPCC's "AirTalk": Guests on the program included John Eastman, professor of law at Chapman University School of Law; Evans; Igor Grant, director of the Center for Medicinal Cannabis Research at the University of California; and Mitchell Earleywine, professor of psychology at the University of Southern California and author of a book titled, "Understanding Marijuana" (Mantle, "AirTalk," KPCC, 11/29). The complete segment is available online in RealPlayer.
- KQED's "The California Report": The segment includes comments from Barnett and Raich (Musiker, "The California Report," KQED, 11/29). The complete segment is available online in RealPlayer.
- NPR's "All Things Considered": The segment includes comments from Robert DuPont, former director of the National Institute on Drug Abuse; Monson; and Raich (Totenberg, "All Things Considered," NPR, 11/29). The complete segment is available online in RealPlayer.
- NPR's "All Things Considered": The segment includes an interview with Marsha Cohen, a professor at the University of California's Hastings College of Law (Block, "All Things Considered," NPR, 11/29). The complete segment is available online in RealPlayer.
- NPR's "Talk of the Nation": The program will include a discussion of the concept of states' rights, which is "currently a front line" for the medical use of marijuana (Conan, "Talk of the Nation," NPR, 11/29). The complete segment will be available online in RealPlayer after the broadcast.
- PBS' "NewsHour with Jim Lehrer": The segment includes comments from Jan Crawford Greenburg, Supreme Court reporter for the Chicago Tribune; Monson; Raich; Robert Raich, an attorney for the medical marijuana users; and Joseph Russoniello, former U.S. attorney for northern California during the 1980s (Ifill/Michels, "NewsHour with Jim Lehrer," PBS, 11/29). The complete transcript is available online. The complete segment is available online in RealPlayer.
- WBUR's "On Point": The show in the second hour of the program will include a discussion of the case ("On Point," WBUR, 11/30). The complete segment will be available online in RealPlayer, Windows Media and Quicktime media formats after the broadcast.