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Supreme Court to Hear Appeal to Determine Constitutionality of Federal Ban on Marijuana in States Allowing Medical Use

June 30, 2004

The Supreme Court on Monday agreed to hear an appeal of a 9th U.S. Circuit Court of Appeals' December 2003 ruling that a federal ban on marijuana is unconstitutional when applied to seriously ill people -- including people living with HIV/AIDS -- who use marijuana for medical reasons in states where the drug's use is allowed when recommended by a physician, the Los Angeles Times reports. The appeal, filed by Attorney General John Ashcroft, claims that federal law bars the use of marijuana in "all instances" (Savage, Los Angeles Times, 6/29). The 9th Circuit Court's ruling said that the federal ban was unconstitutional provided that the marijuana is not sold, transported across state lines or used for non-medical purposes. The original case involved two California women -- Angel Raich and Diane Monson -- who received letters from their doctors authorizing them to use marijuana for medical purposes. Under California's Proposition 215 -- a ballot measure approved by voters in 1996 -- patients with chronic illnesses such as cancer and AIDS can use medical marijuana to treat pain. The physicians' permission protected them from state and local prosecution under Proposition 215. Raich and Monson filed a lawsuit in October 2002 against Ashcroft and former DEA Administrator Asa Hutchinson asking for an injunction that would allow them to continue using marijuana without prosecution. A district judge in March 2003 ruled against Raich and Monson, and Raich appealed the case to the 9th Circuit Court. Neither woman has been prosecuted for using marijuana (Kaiser Daily HIV/AIDS Report, 12/18/03).

Homegrown?
The case, which the court is scheduled to hear in the fall, focuses on whether the federal government has the authority to regulate marijuana grown at home, the Los Angeles Times reports (Los Angeles Times, 6/29). Lawyers for Raich and Monson have said that federal regulations do not apply to this case because the marijuana was grown, distributed and used in California, according to the Contra Costa Times. However, the federal government has pointed to the U.S. Constitution's interstate commerce clause as justification for regulating the distribution of medicine, the Contra Costa Times reports (Ashley, Contra Costa Times, 6/29). Judge Harry Pregerson wrote in the 9th Circuit Court ruling that "noncommercial cultivation, possession and use of marijuana for personal medical purposes" is "different in kind from drug trafficking," protected under California law and not subject to federal authority. "It is a pretty far-fetched argument for them to say this involves interstate commerce because there is no commerce and no interstate activity," Robert Raich, Angel's husband and attorney, said (Los Angeles Times, 6/29).

Appeal
U.S. Solicitor General Theodore Olson wrote in the appeal to the Supreme Court that the Controlled Substances Act covers "all manufacturing, possession and distribution of any" drug and "[t]hat goal cannot be achieved if intrastate manufacturing, possession and distribution of a drug may occur without any federal regulation," the Seattle Post-Intelligencer reports (Gearan, Seattle Post-Intelligencer,6/28). The brief also states that the 9th Circuit Court ruling "seriously undermines Congress' comprehensive scheme for the regulation of dangerous drugs," the New York Times reports. Marijuana is "a commodity that is readily purchased and sold in a well-defined market of drug-trafficking," according to the appeal brief (Greenhouse, New York Times, 6/29). In the brief, Department of Justice attorneys also say that by focusing on California's legalization of marijuana for "purported medical purposes," the 9th Circuit Court did not consider that the federal government considers marijuana to be a dangerous drug with "no legitimate use," according to the San Francisco Chronicle (Egelko/Hoge, San Francisco Chronicle, 6/29). Currently, California, Alaska, Colorado, Hawaii, Maine, Nevada, Oregon, Vermont and Washington have laws permitting the use of medical marijuana. Thirty-five states have enacted legislation recognizing the drug's medicinal value (Ritter, USA Today, 6/29). The Supreme Court is expected to make a decision in the case by the end of June 2005 (San Francisco Chronicle, 6/29).

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Reprinted with permission from kaisernetwork.org. You can view the entire Kaiser Daily HIV/AIDS Report, search the archives, or sign up for email delivery at www.kaisernetwork.org/dailyreports/hiv. The Kaiser Daily HIV/AIDS Report is published for kaisernetwork.org, a free service of the Kaiser Family Foundation, by The Advisory Board Company. © 2004 by The Advisory Board Company and Kaiser Family Foundation. All rights reserved.




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