Pubdate: Tue, 23 Nov 2004
Source: San Jose Mercury News (CA)
Copyright: 2004 San Jose Mercury News
Contact:  http://www.mercurynews.com/
Details: http://www.mapinc.org/media/390
Author: Howard Mintz
Cited: Raich v. Ashcroft ( www.angeljustice.org/ )
Cited: Wo/Men's Alliance for Medical Marijuana ( www.wamm.org )
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

OAKLAND WOMAN BATTLES FOR MEDICAL POT

Case Before U.S. Supreme Court Claims Prop. 215 Right To Smoke

In the dimly lit living room of her home in the Oakland hills, Angel
Raich lights up a pipe stuffed with marijuana. For this frail mother
of two teenagers, the ritual isn't some secret drug habit -- it is a
recommendation by a doctor to help with a variety of painful ailments,
including a brain tumor.

Although Raich smokes nine pounds of marijuana each year, California
law enforcement officials consider her a law-abiding citizen.
California voters eight years ago legalized medicinal marijuana for
patients like Raich.

But to the federal government, Raich is a criminal.

Now, she and Diane Monson, a Butte County woman who also smokes
marijuana at the recommendation of her doctor, are the latest legal
warriors in the seemingly irreconcilable conflict between the federal
government and states such as California that endorse the use of
cannabis for the sick and dying.

For the second time in three years, that collision has reached the
U.S. Supreme Court, which on Monday will hear arguments in their
challenge to the Bush administration's efforts to crack down on
medicinal marijuana. The stakes are high for medical marijuana
advocates: Another loss in the Supreme Court probably would slam the
door for patients and those who grow pot for them, barring a shift in
Congress' attitude about legalizing marijuana.

Anti-drug groups, siding with Congress and the administration, have
questioned whether the risks of smoking marijuana outweigh any
medicinal value.

Even a win for Raich and Monson may provide only limited rights to
medical marijuana patients, but they would be satisfied with a ruling
that offers some guarantee they won't be arrested or raided by federal
drug agents.

"Going to the Supreme Court makes it a final decision on whether I get
to live or die,'' said Raich, whose husband, Robert, is one of the
lead attorneys in the case. "I'm not trying to legalize marijuana. I'm
simply trying to stay alive.''

Monson's cannabis garden was raided by drug agents in August 2002. As
agents chopped down and hauled away her marijuana plants, Monson read
them Proposition 215, the 1996 ballot measure that legalized marijuana
for specific medical purposes.

"I'm very frustrated my government would make me into a criminal on
this one issue,'' said Monson, who owns a business in Oroville and
uses pot to treat a degenerative back condition.

U.S. asserts primacy

U.S. Justice Department lawyers declined to comment on the case. In
court briefs, the government has stuck to the position it has taken
since California and other states began enacting medical marijuana
laws -- that federal drug laws trump state powers and continue to
forbid the possession, use or sale of pot.

Legal experts say Raich and Monson have a tough fight in the Supreme
Court. In 2001, the court unanimously rejected an Oakland cannabis
club's argument that there is a "medical necessity'' exception to
federal drug laws. But the justices left unresolved other issues now
in play in the Raich case.

"Even if Raich wins, it could be a very narrow victory,'' said Gerald
Uelmen, a Santa Clara University law professor who argued the Oakland
pot club case. "But if we can just keep the door open a crack, that's
got to be our strategy.''

The case comes at a crucial point. Eleven states have passed laws that
in some way permit the practice, and polls in most states, including a
recent one in Texas, show support for legalizing medical cannabis,
which is used by patients with medical problems ranging from glaucoma
to AIDS and cancer.

The Raich case is the first test of the Bush administration's more
aggressive approach toward patients and pot providers in California
and elsewhere. During the Clinton administration, federal law
enforcement officials used civil lawsuits to target distributors but
largely left individual patients alone.

Under outgoing Attorney General John Ashcroft, federal agents have
raided and arrested medical marijuana patients and their pot
providers, including a raid on a Santa Cruz cooperative in 2002.

Raich and Monson sued to prevent the government from being able to
raid or arrest them. But when the justices consider Raich and Monson's
arguments, they will not be deciding the merits of medicinal marijuana
laws. Instead, the case turns on old-fashioned principles of states'
rights and the scope of federal powers to regulate commerce, the legal
link to the enforcement of many federal laws.

The court in recent years has been fiercely divided on the issue of
states' rights vs. federal power, often splitting 5-4 in cases that
hinge on the question. Chief Justice William Rehnquist, who is being
treated for thyroid cancer, has been a deciding vote in favor of
states' rights, but his participation in the upcoming arguments is in
doubt.

A federal appeals court sided with Raich and Monson last year,
concluding that Congress does not have the authority to regulate
medical marijuana possession as long as the activity doesn't cross
state lines.

Even if medical pot advocates win in the Supreme Court, a ruling would
only allow authorized patients to possess marijuana for personal use
or caregivers to grow and provide the weed as long as no money changes
hands. Federal drug laws would continue to prevent broader methods of
providing medical marijuana to patients.

Broader ramifications

But the case has ramifications for a host of other pending cases,
including possibly nullifying an injunction that bars federal agents
from raiding the Wo/Men's Alliance for Medical Marijuana in Santa Cruz.

Anti-drug groups argue that medical marijuana advocates just want a
backdoor way to legalize the addictive drug for recreational use, but
Raich and Monson chafe at that suggestion.

Monson, 47, describes how her husband turned to medical marijuana last
year, before succumbing to pancreatic cancer even as her case wound
through the courts.

The 38-year-old Raich has been fighting the federal government since
Proposition 215 was adopted, first serving as what she calls a
"spokespatient'' for the Oakland Buyers Cannabis Club and now as the
point person in a lawsuit that has reached the nation's high court.
Once confined to a wheelchair, Raich says marijuana has enabled her to
regain mobility and the ability to eat enough to stay alive.

In the morning, with the cannabis out of her system, Raich has trouble
pulling herself out of bed. She smokes about every two hours, getting
her marijuana from ``John Does'' who grow it for her and who are also
part of the court case. She insists she doesn't get high from
marijuana -- just well.

"Believe me, if I could take a pill, I would,'' Raich said. "If I stop
using cannabis, we know what would happen. I would die.''
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MAP posted-by: Larry Seguin