Pubdate: Mon, 7 Jun 2004
Source: National Law Journal (US)
Copyright: 2004 NLP IP Company
Contact:  http://www.nlj.com/
Details: http://www.mapinc.org/media/1624
Author: Marcia Coyle, Staff Reporter
Cited: Raich v. Ashcroft http://angeljustice.org/
Bookmark: http://www.mapinc.org/people/Angel+Raich
Bookmark: http://www.mapinc.org/people/Diane+Monson
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/ashcroft.htm (Ashcroft)

0-2 IN 9TH, ASHCROFT MAY SEEK REVIEW

AT ISSUE ARE MEDICAL POT, ASSISTED SUICIDE.

Washington-Before the end of the year, the U.S. Supreme Court may be asked 
to wade once again into the legal thicket surrounding assisted suicide and 
the medical use of marijuana because of recent court defeats suffered by 
the Bush administration.

Attorney General John Ashcroft already has petitioned the high court to 
review the medical marijuana decision issued by the 9th U.S. Circuit Court 
of Appeals last December. Ashcroft v. Raich, No. 03-1454. And Department of 
Justice officials are now considering whether to go to the high court or to 
seek en banc review by the 9th Circuit of the May 26 assisted suicide 
ruling, said a department spokesman. Oregon v. Ashcroft, No. 02-35587.

Both rulings stem from long-running battles between the Justice Department 
and two states, California and Oregon, whose laws legalizing medical 
marijuana use and assisted suicide have come up against Ashcroft's 
interpretation of a federal criminal statute, the Controlled Substances Act 
of 1970 (CSA).

Both cases share common ground in the significant legal questions that they 
raise, said Marc Spindelman of Ohio State University College of Law, who 
has written about the issues.

"There are questions about the authority of the federal government and the 
states' authority to determine what medical practice is," he said. "There 
are questions about what the purpose of the Controlled Substances Act is. 
And there are questions about Congress' authority to regulate commerce when 
it involves controversial medical decisions, and what tools, if any, the 
federal government should use in the national debate about how medical 
practice should or shouldn't evolve."

And both cases have triggered criticism by some litigants and others that 
Ashcroft is pursuing a personal or political agenda instead of a law 
enforcement one.

That criticism is not unusual given the nature of the issues in both cases, 
said Spindelman, who described himself as someone who disagrees with many 
of Ashcroft's initiatives.

"In both cases, the decision being made at the local level has national 
implications, so it's not surprising there is a federal response to the 
local initiatives," he explained. And the criticism, he added, is 
"certainly not surprising where the initiatives at the local level tend to 
be viewed, even if they are not, as 'liberal' projects, and the federal 
government has, at least in the executive branch, a 'conservative' agenda."

Ashcroft may be more vulnerable to the criticism because his legal 
arguments in both cases seem undercut by recent Supreme Court rulings, said 
high court scholar Douglas Kmiec of Pepperdine University School of Law, 
who shares Ashcroft's opposition to assisted suicide.

"But the attorney general has a responsibility to defend the institution's 
mission and that mission is very much shaped by the control of drugs," he 
added. "The attorney general may be guided by that law enforcement mission 
and may decide to leave the constitutional questions to someone else."

Regulating Drugs

In the marijuana litigation, Angel McClary Raich and Diane Monson use 
marijuana for medical purposes on the recommendation of their doctors. 
After agents from the Drug Enforcement Administration seized Monson's six 
cannabis plants, the two women, fearing future raids, sued Ashcroft. They 
sought a declaration that the CSA was unconstitutional as applied to the 
medical use of marijuana and an injunction. At that time, Alaska, Arizona, 
California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington had 
passed laws permitting the cultivation and use of medicinal marijuana.

The CSA establishes five "schedules" of certain drugs and substances and 
designates them "controlled substances." Under the act, marijuana is a 
schedule I controlled substance because it has no currently accepted 
medical use, it has a high potential for abuse and there is a lack of 
accepted safety for its use under medical supervision.

After losing in the district court, Raich and Monson appealed to the 9th 
Circuit. Ruling 2-1, a panel agreed with the women in holding that the CSA, 
as applied to them, is an unconstitutional exercise of Congress' commerce 
clause authority. The majority, led by Judge Harry Pregerson, noted that 
the circuit had upheld the CSA under the commerce clause in prior cases, 
but here the class of activities was very different from the earlier cases 
that concerned drug trafficking.

The class of activities at issue in Raich, said the majority, was 
intrastate, noncommercial cultivation, possession and use of marijuana for 
personal medical purposes on the advice of a physician and in accordance 
with state law.

The court looked to U.S. v. Morrison, 529 U.S. 598 (2000), a commerce 
clause challenge to the Violence Against Women Act, to analyze whether the 
activity in Raich substantially affects interstate commerce. Morrison sets 
out four factors for answering that question. Under each factor, the panel 
majority found no substantial effect on commerce.

Senior Circuit Judge C. Arlen Beam of the 8th Circuit, sitting by 
designation, dissented, saying he found it impossible to distinguish the 
conduct surrounding the cultivation and use of marijuana from the that of a 
wheat crop for family use, which the Supreme Court held did affect 
interstate commerce in Wickard v. Filburn, 317 U.S. 111 (1942).

The assisted suicide case, unlike the medical marijuana case, was not a 
constitutional ruling, but one involving a statutory interpretation.

A doctor, a pharmacist, several terminally ill patients and the state of 
Oregon challenged the so-called Ashcroft Directive, an interpretative rule 
stating that physician-assisted suicide violates the CSA. The directive 
criminalizes conduct authorized by Oregon's Death with Dignity Act of 1994.

After the plaintiffs won in the lower court, a 9th Circuit panel, led by 
Richard C. Tallman, held, 2-1, that the directive "invokes the outer limits 
of Congress' power by encroaching on state authority to regulate medical 
practice." Because Congress did not clearly authorize that intrusion, the 
majority said, the directive violates the clear-statement rule.

The CSA, according to the majority, expressly limits federal authority to 
the field of drug abuse, and physician-assisted suicide is not a form of 
drug abuse that Congress intended the CSA to cover. And the majority noted 
that the Supreme Court, in its first look at the assisted suicide issue, 
had said that the debate about the morality, legality and practicality of 
the practice belongs to state lawmakers. Washington v. Glucksberg, 521 U.S. 
702 (1997).

But Judge J. Clifford Wallace dissented, saying that the act's text 
furnishes "ample evidence" that Congress was concerned with any improper 
drug use that might have a detrimental effect on the public health, and 
"nothing in the Controlled Substances Act's text precludes its application 
to physician-assisted suicide." Deference is owed Ashcroft's 
interpretation, he said.

Who Can Regulate?

"The seed in both cases is the recognition that the regulation of the 
practice of medicine has historically been within states' power," said 
Kathryn Tucker of Compassion in Dying, co-counsel in the Oregon case for 
the individual plaintiffs. "That's really why when Raich came out, we did a 
supplemental citation on it," she added. "We thought it was an important 
decision."

The Oregon decision, she said, was a victory on two levels: "It preserved 
the laboratory of the states on the assisted suicide question, which the 
Supreme Court felt should go forward, and it protects dying patients in all 
50 states from having their pain management imperiled.

"When Ashcroft announced the department would be scrutinizing doctors in 
Oregon, it made all doctors all over country fearful about their 
prescriptions for pain," explained Tucker.

But James Bopp of Bopp Coleson & Bostrom in Terre Haute, Ind., who filed an 
amicus brief in the Oregon case supporting Ashcroft, sees the two cases 
differently. "They're related because of the general proposition that the 
federal government has the authority to regulate the use of drugs-an 
authority that certainly had not been disputed until most recently," Bopp said.

Federal laws are supreme so state laws just give way, he said. "If you go 
back far enough, the federal government didn't do anything, but over time 
those state regulations of areas that were historically viewed as of 
particular state concern have given way to federal laws," he said. "Unless 
there is some constitutionally protected right to practice medicine, which 
the Supreme Court has regularly turned down, then there is nothing peculiar 
about the practice of medicine as opposed to being a plumber in terms of 
the relevant power of the state or federal government to regulate."

Applying the CSA to assisted suicide is not at odds with the notion that a 
state can legalize assisted suicide, he added. "They just have to use some 
other means-strangulation, ropes, ladders, trees. But they made the choice 
of using a controlled substance and when they made that choice, they ran up 
against a federal law."

Ohio State's Spindelman said a states' rights argument in the context of 
health care is hard to sustain, particularly after the 9/11 attacks.

"We're now thinking about mass inoculations or other interventions in case 
of a terrorist strike," he said. "Are we going to say the federal 
government's effort to coordinate responses in the unhappy event we need to 
have massive public health intervention is going to be hamstrung or subject 
to veto by the states?

"Where is the authority of the federal government to make the determination 
that marijuana does not have a medical purpose, or to classify marijuana in 
the way it has in the CSA, if direct control of medical practice is beyond 
the power of the federal government? Where does the federal government get 
the authority to regulate medical experimentation? Isn't that ever control 
of medical practice?"

Pepperdine's Kmiec, a former Reagan Justice Department official, sees 
trouble for the government's position in both cases if they are taken by 
the Supreme Court.

In the assisted suicide case, he said, "To assume the same level of 
statutory deference would be given to the attorney general's interpretation 
after the Supreme Court had already, in essence, invited Oregon to have its 
own debate and reach its own conclusion was unfortunate and an incorrect 
assumption."

In the medical marijuana case, Kmiec noted that judges appointed by 
presidents Reagan, Clinton and both Bushes have been saying for some time 
that an activity that is neither interstate nor commercial in nature is not 
easily regulated as interstate commerce.