California Women Make a New Case for Medical Marijuana

OAKLAND â€”  She is fast becoming America’s best-known pot patient, the woman whose case may help decide whether marijuana has an unfettered future as medicine.

Angel Raich takes her case before the nation’s highest court Monday in a bid to keep the federal government from threatening her use of the leafy herb.

To the U.S., cannabis is illegal for any use. To Raich, it is a lifesaver.

The U.S. Supreme Court will wade into a thicket rife with confusion since California voters approved the nation’s first medical marijuana ballot measure in 1996.

Facing the high court will be various issues: the right of a state to sidestep federal laws, the ability of Congress to regulate interstate commerce, and the needs of a nation to police illegal drugs versus the needs of the seriously ill.

Bracketing the legal arguments are the stories of Raich, a 39-year-old mother who suffers from more than a dozen ailments she says don’t respond to traditional treatments, and her co-plaintiff, Diane Monson, 47, of Butte County.

Monson started using cannabis half a dozen times a day to fight chronic back spasms after her doctor recommended it when other therapy failed.

“I would be dead right now� without cannabis, Raich contends.

The roots of her battle date from the weeks after the terrorist attacks of Sept. 11, 2001. At that time, Raich, a mother of two who had been using marijuana for several years to combat illnesses including a brain tumor, fibromyalgia and a chronic wasting condition, watched in disbelief as federal drug agents raided and shut down several medical marijuana dispensaries.

Aghast at what she and many other “medpot� activists viewed as a misappropriation of federal resources better used in the war against terrorism, Raich and her husband, Oakland attorney Robert Raich, decided something must be done. They recruited Monson, who had had her home raided and six medical pot plants uprooted by federal agents, and filed a lawsuit in October 2002 against the U.S. government.

They asked that the federal government be blocked from arresting either woman, suing them civilly and seizing their medical cannabis or property through asset forfeiture.

Prior lawsuits had claimed that marijuana patients should be allowed to use a federally outlawed drug out of medical necessity, but attorneys for the two women took a different tack -- basing their argument on the commerce clause of the Constitution.

Under the Constitution, Congress can regulate the flow of commercial products and services between states. That bedrock principle was applied when Congress adopted U.S. drug laws in 1970 against trafficking of marijuana and illegal narcotics, such as LSD and heroin.

Raich and Monson argued that the commerce clause did not apply to their use of medical marijuana. Monson grows her marijuana at home with seeds from the prior year’s crop -- nothing ever crosses state lines.

Likewise, Raich says her medical pot is essentially homegrown. The cannabis is donated by two California growers -- named only John Doe No. 1 and No. 2 in the lawsuit -- who use seeds, soil and water from the Golden State.

What might seem legal sleight of hand has become a knockdown fight largely over states’ rights.

When the pair prevailed before the U.S. 9th Circuit Court of Appeals a year ago, the U.S. appealed. As federal lawyers see it, the federal Controlled Substances Act trumps state laws authorizing medical marijuana (nine states besides California have legalized cannabis as medicine).

Even in cases where illegal drugs are not trafficked between states, federal attorneys argue, the local cultivation, distribution and possession of pot cannot be distinguished from interstate trafficking. Government lawyers argue that U.S. drug agents would face “staggering� difficulties trying to differentiate between illegal drugs transported between states and narcotics that never cross a state line.

To back up the argument, the U.S. cites the 1942 case involving farmer Roscoe Filburn and his wheat crop.

The U.S. Supreme Court upheld a fine against Filburn for growing more wheat than allowed under a federal cap, which was put in place to regulate interstate commerce of the crop. Filburn argued that the excess wheat never left his farm, but was used to bake bread and feed his animals.

Federal lawyers argue that the medical marijuana of Monson and Raich, much like Filburn’s wheat, remains a crop subject to federal authority even if it doesn’t enter the stream of commerce.

The lawyers say in a brief that medical marijuana has a substantial effect on interstate commerce, with excess pot potentially diverted to illegal trade or patients turning to dealers when their supplies run short.

Raich and Monson have received support and opposition -- some expected, some a bit surprising.

Briefs supporting the government have come from the Drug Free America Foundation, Save Our Society From Drugs and other longtime combatants in the war on drugs. Those groups call the case a “Trojan horse tactic� by drug legalization advocates, and say superior medications could be used instead of marijuana.

Several members of the U.S. House of Representatives also backed the government in a legal brief, saying medical marijuana gave traffickers “safe havens� and a new way to avoid arrest. They suggested the Raich case could have “far-reaching implications,� opening the door to arguments for the medical use of cocaine, heroin and methamphetamine.

On the streets, “there’s no difference between the marijuana that sick people use� and the pot bought by addicts, said Richard Meyer, a U.S. Drug Enforcement Administration spokesman in San Francisco. “We have no beef with sick people. But we have no compassion for the dealers who are preying on these sick people.�

Raich and Monson have received support from several pro-legalization groups, as well as medical associations and several states -- including three states staunchly against medical marijuana.

Alabama, Louisiana and Mississippi side with the federal government’s regulation of pot, but support the argument made by Raich and Monson about Congress overstepping on a matter of interstate commerce.

They argue in a brief that the Constitution permits states to serve as “laboratories for experimentation� on novel social and commercial enterprises. The federal system allows states to set criminal policy, they say, arguing, “As a sovereign member of the federal union, California is entitled to make for itself the tough policy choices that affect its citizens.�

Activists hope the high court acts to shield medical marijuana patients from federal threat. If Raich prevails, several other medical marijuana cases could follow. The most notable is a bid by a Santa Cruz County collective of 200 patients who engage in noncommercial cultivation of medical marijuana.

While activists are playing up the big stakes of the Raich case, they’re downplaying the consequences if the bid should fail.

Steph Sherer, executive director of Americans for Safe Access, said a Supreme Court defeat would be a blow -- but not a fatal one. “If Raich loses,� she said, “California still will have its law. Losing won’t mean the end of medical marijuana.�

Raich, a waif of a woman in constant combat with her various ills, would just like the time to arrive “when we can be taken off the battlefield.�

Life is hard enough as is, she said. She uses pot every two hours to ward off pain -- and keep weight on. She can lose a pound a day if her appetite ebbs.

In an upstairs room, Raich heats up her cannabis with a vaporizer. The machine injects a cloud of pot into a clear sack. She holds it like a bag of cotton candy, taking hits from a nozzle at the end.

“This isn’t about recreation,� she says between puffs. “I don’t like doing this. It’s not something I’ve chosen. But I had to do it for my kids. To stay alive.�