Medical Marijuana Victories

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http://www.alternet.org/story.html?StoryID=18010

 

 

Medical Marijuana Victories

 

By Ann Harrison, AlterNet

March 2, 2004

 

While the federal government continues to insist that marijuana is not a

medicine, the medical marijuana movement has been pushing back – scoring a

recent string of legal victories that will make 2004 a pivotal year for patients

and their caregivers.

 

 

 

The latest blow against the federal drug warriors came last week when medical

cannabis patient Angel McClary Raich received word that the Ninth U.S. Circuit

Court of Appeals had rejected the government's petition for a review of its

ruling protecting medical cannabis patients. A three-judge panel of the

appellate court decided last December in Raich v. Ashcroft that the arrest and

prosecution of medical cannabis patients is unconstitutional as long as they

obtain their marijuana without purchasing it or crossing state lines – and if

they use the plant medicinally in compliance with state law.

 

 

 

" It makes me feel really good to know that the Ninth Circuit Court of Appeals

has joined the eighty percent of Americans who feel that cannabis is a

legitimate medicine, " says Raich pointing the November 2002 Time Magazine poll

which found overwhelming support for medical marijuana.

 

 

 

The ruling was initiated by a 2002 lawsuit filed by Raich and fellow cannabis

patient Diane Monson, whose medical marijuana garden was destroyed by federal

agents. The women sought an injunction against the raids, which the Drug

Enforcement Administration has been carrying out for seven years against

California medical cannabis dispensaries, patients and their caregivers. " That

was very scary for me, " says Raich who has an inoperable brain tumor and says

she needs cannabis to stay alive. " I had to protect myself and other patients. "

 

 

 

The U.S. Justice Department attempted to reverse the decision by petitioning the

federal appeals court for an " en banc " review by 11 judges. But the judges stood

unanimously behind their decision. The final ruling became effective immediately

in the seven states within the Ninth Circuit's jurisdiction that have medical

cannabis laws. They include Alaska, Arizona, California, Hawaii, Nevada, Oregon

and Washington. The Justice Department has 90 days to appeal the ruling to the

U.S. Supreme Court. " We have not made any determination what the next step will

be, " says Department of Justice spokesperson Charles Miller who declined to

comment on the Ninth Circuit decision.

 

 

 

Raich, a frail and determined mother of two, took part in the last Supreme Court

decision on medical cannabis. Back in 2001, she was one of the fourteen medical

cannabis patients cited by the Oakland Cannabis Buyers' Cooperative (OCBC) in

its request for a " medical necessity " exemption to federal drug laws. The court

struck down the medical necessity argument and ordered a permanent injunction

against the cooperative's distribution of medical cannabis. But judges did not

consider the constitutional questions surrounding the government's power to

apply federal drug laws to the medical marijuana patients themselves.

 

 

 

Raich v. Ashcroft could well be the case in which the Supreme Court finally

addresses these issues. The Ninth Circuit based the Raich v. Ashcroft decision

on an interpretation of the Commerce Clause, which gives the government the

power to control interstate commerce. Since the medical marijuana in question

was used only in state and was not for sale, the court ruled that the federal

government had no jurisdiction. Activists are encouraged by the fact that the

Supreme Court's conservative majority has already made several rulings

restricting federal powers to interstate commerce.

 

 

 

Last year, the Supreme Court also let stand another Ninth Circuit decision that

barred the federal government from punishing physicians who recommended medical

marijuana to patients. Supreme Court justices declined to hear the case of

Conant v. Walters, in which a group of California doctors and patients sued on

First Amendment grounds after the federal government threatened to revoke the

DEA licenses of physicians who recommend cannabis.

 

 

 

The Legacy of Raich v. Ashcroft

 

 

 

As a landmark ruling, Raich v. Ashcroft could influence the outcome of the OCBC

case still under consideration by the Ninth Circuit. But the OCBC case involves

the sale of medical cannabis while the plaintiffs in the Raich case got their

marijuana for free. The facts of Raich v. Ashcroft have more in common with

another lawsuit brought by the Wo/Men's Alliance for Medical Marijuana (WAMM), a

patient's cooperative that did not charge for their medical cannabis. WAMM filed

their lawsuit in U.S. District Court in San Jose in April 2003 after the DEA

seized WAMM's medical marijuana garden in a paramilitary operation that was

resisted by local patients. WAMMs lawsuit calling for an injunction against

future raids was struck down. But the District Court has now agreed to review

its ruling in light of the Raich decision. While the Ninth Circuit focused on

the Commerce Clause and not the patients' claim that they had a right to be free

from pain and suffering under the Fifth and Ninth

Amendments, these constitutional issues are raised in the lawsuit filed by

WAMM, which includes many terminally ill patients.

 

 

 

There are signs that the federal government may be getting increasingly nervous

about the run of favorable marijuana rulings. Buried in the 2004 federal

spending bill is the so-called " Istook Amendment " which cuts off more than $3

billion in federal funding from local transit authorities that display

advertisements promoting " the legalization or medical use of any substance

listed in Schedule I ... of the Controlled Substances Act. " Representative

Ernest Istook (R-OK) added the amendment after seeing marijuana law reform ads

that he disagreed with. Faced with loosing $85 million in federal funding, the

Washington Metropolitan Area Transit Authority rejected an advertisement last

month submitted by a coalition of drug policy reform groups. The ad shows a

group of ordinary people standing behind prison bars under the headline,

" Marijuana Laws Waste Billions of Taxpayer Dollars to Lock Up Non-Violent

Americans. "

 

 

 

On February 18, drug law reformers stuck back. The ACLU, Change the Climate, the

Drug Policy Alliance and the Marijuana Policy Project (MPP) filed a lawsuit

against the U.S. Government and the Transit Authority for censoring the speech

of those who oppose the federal war on drugs. The lawsuit, ACLU v. Mineta, asks

the court to declare the Istook Amendment unconstitutional, order the Washington

Metro to accept the groups' paid advertisement, and to prohibit the federal

government from cutting off any funds to the Washington Metro or any other

transit authority that permits the display of advertisements " promoting the

legalization or medical use " of marijuana or other Schedule I drugs. Plaintiffs

in this lawsuit point out that the same 2004 federal budget that slams marijuana

law reform advertising, includes $145 million in taxpayer money for pro-drug war

ads that focus primarily on an anti-marijuana campaign.

 

 

 

As the medical marijuana lawsuits make their way through the courts, the

plaintiffs continue to organize. WAMM founders Mike and Valerie Corral have been

working with the City of San Francisco to implement Prop. S, a 2002 ballot

measure which directs the city to explore the possibility of growing and

distributing medical cannabis. MPP is working to pass medical marijuana bills

this year through state legislatures in Connecticut, Illinois, New York, Rhode

Island and Vermont. Members of the OCBC have been lobbying their local city

council in Oakland, California, which moved last month to shut down all but four

of the city's dozen thriving medical marijuana dispensaries. Activists succeeded

in keeping the city's current allowance of 72 plants and three pounds of dried

cannabis per patient.

 

 

 

For her part, Raich has recorded pro-medical cannabis phone messages sent to

600,000 registered voters and is preparing for her next round with the federal

government. " I am totally ready to go to the Supreme Court and take on Ashcroft,

I am not backing down, " said Raich. " Ashcroft has already lost to a dead guy,

does he want to go to the Supreme Court and loose to someone like me who is sick

and disabled? "

 

 

 

Ann Harrison writes the At Liberty column from San Francisco.

 

 

 

 

 

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