E-Mail This Article to a Friend The case for medical pot Now that the Supreme Court has said no, it’s time for Congress to say yes

BEFORE SHE BEGAN smoking marijuana in the late 1990s, Angel Raich says she could not get out of her wheelchair, so disabled was she by a brain tumor, chronic-wasting syndrome, and a variety of other ailments. Although she still lives with constant pain, today the California mother is able to walk, eat, and lead something approaching a normal life. "For years I felt as if I was suffering in Hell," Raich has written. "What I had to endure was unbelievable and indescribable torture. I will not go back to Hell for anyone or anything.... Without cannabis my life would be a death sentence."

This past Monday, the US Supreme Court took a step that could re-impose a hellish existence on Raich and other seriously ill people who depend on marijuana to give their lives some semblance of balance. In a six-to-three decision, the justices ruled that a federal law outlawing marijuana supersedes the laws of 10 states — including California and two New England states, Maine and Vermont — that allow patients, with their doctors’ permission, to possess marijuana for their own personal use. (Rhode Island legislators are considering a similar bill.)

The decision flies in the face of scientific evidence that marijuana is uniquely effective in countering nausea in cancer patients undergoing chemotherapy; appetite loss experienced by people with AIDS; pain; and anxiety. It also contradicts a Time/CNN poll, taken in October 2002, that found 80 percent of respondents "think adults should be able to use marijuana legally for medical purposes." But the court’s decision was not about science or public opinion; rather, it was about the law. That is the proper business of the courts. And it is up to our elected officials to change the law when it makes no sense.

For 10 years now, US Representative Barney Frank, a Massachusetts Democrat, has been filing legislation that would give states the right to permit the medicinal use of marijuana. He filed the bill again last month. In an interview with the Phoenix this week, Frank said he sees the issue as similar to the efforts of conservatives to keep Terri Schiavo attached to a feeding tube, and to stifle research into the possible uses of embryonic stem cells. As with those other hot-button issues, Frank says, the conservatives are on the wrong side of science and public opinion.

"I’m trying to sell this as the third example of ‘We’re not doctors, we just play them on C-SPAN,’" says Frank of his bill, formally known as the States’ Rights to Medical Marijuana Act, or HR 2087. "It may appeal to some of the more anti-government, libertarian instincts." Still, Frank doesn’t have much hope of its passing for at least a few more years; he adds that he’s more optimistic about a bill he’s sponsoring that would end the ban on government aid to college students who’ve been convicted of minor drug offenses.

In the absence of congressional action on medical marijuana, it was up to the Supreme Court this week to parse the fine points of constitutional principle. A particularly striking aspect of the court’s decision was that both liberals and conservatives found themselves in an awkward position. Writing for the majority, Justice John Paul Stevens, perhaps the most liberal member of the court, said federal law must prevail even though he sympathized with the plight of Raich and her fellow patients. And Justice Sandra Day O’Connor, writing for the conservative minority, said that California’s medical-marijuana law should be upheld even though she personally would have opposed it had she been a resident of that state. Thus the fate of patients who depend on marijuana was made subservient to the never-ending debate over federalism and states’ rights.

That three conservative justices — O’Connor, Clarence Thomas, and Chief Justice William Rehnquist — would vote to affirm the right of states to allow the use of medical marijuana was of no small significance. Though the most conservative justice of all, Antonin Scalia, voted with the liberals to uphold the federal anti-drug law, O’Connor, Thomas, and Rehnquist, to their credit, stuck to their limited-government principles rather than give in to any squeamishness they might feel about pot-smoking.

Stevens based his majority decision on the federal government’s constitutional power to regulate interstate commerce (a power it holds by virtue of the Constitution’s "commerce clause"), which seems a stretch given that marijuana cannot legally be sold anywhere in the United States. But O’Connor, invoking Louis Brandeis’s view that the states should be free to experiment with social policies, wrote, "This case exemplifies the role of States as laboratories." Added Thomas: "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything."

The case of Gonzales v. Raich is not yet over. The federal appeals court will now consider the lawsuit on grounds other than the commerce clause, and it could be some years before this is decided one way or the other. Nor is there any imminent threat that federal agents are going to storm the homes of cancer-stricken pot-smokers to confiscate their marijuana plants. (Although in George W. Bush’s America, you never know: this all started in 2002, when officials with the federal Drug Enforcement Administration raided the California home of Diane Monson, a chronic-pain patient, and destroyed her six marijuana plants. Monson became Raich’s co-plaintiff.)

Ultimately, though, this issue should be decided by Congress. If, as Justice Stevens suggests, Congress has a constitutional right to outlaw marijuana, then it has a moral and ethical obligation to end that ban in the case of seriously ill people who could benefit from cannabis’s medicinal properties. There is a serious argument to be made that marijuana should not be illegal at all, but that’s a matter for another day. What’s at issue here is the absurdity of a patchwork of laws that allows doctors to prescribe dangerous but sometimes-necessary drugs such as OxyContin and morphine, but not marijuana, a considerably more benign substance.

The Supreme Court’s action this week may or may not have been right from a legal and constitutional point of view. But it is outrageous that seriously ill patients cannot obtain legal access to the drugs they need, including marijuana. On issues ranging from stem-cell research, to global warming, to the teaching of evolution in schools, President Bush and the Republican majority in Congress have demonstrated a shocking hostility to science. Sadly, that seems unlikely to change anytime soon.

What do you think? Send an e-mail to letters[a]phx.com