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High court sides with feds, OKs medicinal marijuana prosecutions

WASHINGTON—Siding with federal authority over states' rights and compassion for terminally ill patients, the Supreme Court said Monday that the government can prosecute sick people who smoke pot as a painkiller—even in states where such use is legal.

The 6-3 ruling, which crossed the court's usual ideological lines, doesn't invalidate laws in the 10 states that have approved medical marijuana, but it does deflate their power to protect users and doctors who prescribe the drug.

The court said the regulation of illicit drugs is a matter of interstate commerce, reserved exclusively to the federal government by the Constitution. That includes regulating local activities, such as the growing and consumption of medical marijuana, that could have an effect on interstate markets. So the federal Controlled Substance Act of 1970, which classifies marijuana as a drug unacceptable for any use, holds sway over any state provisions that say otherwise.

The decision means patients such as Diane Monson and Angel Raich, the California women who challenged the federal law, risk federal prosecution if they don't stop growing and smoking marijuana.

Raich said Monday that her decision was a no-brainer.

"If I stop using it, I would die," said Raich, who admitted she was smoking even as she talked with reporters by phone about the ruling. She suffers from an inoperable brain tumor, scoliosis and several other permanent disabilities, and other medications have been ineffective. "I do not have a choice but to continue using cannabis," Raich said.

Raich and her lawyers said their next move is to Congress, where they hope to persuade lawmakers to restrain the Justice Department from spending money to prosecute medical marijuana users in states that permit it. They'll also go back to court to fully litigate a claim, undecided by the high court, that they have a constitutional right to disregard the federal drug law out of medical necessity.

The Justice Department didn't say Monday how aggressive it would be in pursuing prosecutions against medical marijuana users.

In his opinion for the court, Justice John Paul Stevens sympathized with Raich and others who use marijuana, saying the case was complicated by their claims that they would "suffer irreparable harm" if the court ruled against them.

But the question the court faced, Stevens said, was whether Congress' power to regulate interstate markets could reach into areas such as medicinal marijuana, where drugs are produced and consumed locally.

"Well-settled law controls our answer," Stevens wrote. The Controlled Substances Act "is a valid exercise of federal power, even as applied to the troubling facts of this case." Stevens' opinion was joined by Justices Anthony Kennedy, Antonin Scalia, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

In a strongly worded dissent, Justice Clarence Thomas said the court had opened the door to nearly unlimited government regulation.

"Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines and that has had no demonstrable effect on the national market for marijuana," Thomas wrote. "If Commerce can regulate this . . . then it can regulate virtually anything."

Chief Justice William Rehnquist also dissented, as did Justice Sandra Day O'Connor, who wrote separately.

Key to the court's decision was a determination that there's no such thing as personally grown or consumed marijuana that doesn't have an effect on the broader drug market. Monson and Raich had maintained that their drugs existed in a parallel market that had no effect on the illicit drug trade, since they're not buying or selling marijuana.

But Stevens found the effect of their activity on interstate markets "readily apparent," given that the California law only loosely restricted the amount of marijuana patients could grow.

"The likelihood that all such production . . . will precisely match the patients' medical needs . . . seems remote," he said, "whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious."

O'Connor took issue with that logic.

"The court's definition of economic activity . . . threatens to sweep all of productive human activity into federal regulatory reach," she wrote. "To draw the line wherever private activity affects the demand for market goods is to draw no line at all. We have already rejected the result that would follow—a federal police power."

The case has its roots in a federal raid on Monson's Oroville, Calif., farm in 2002. She was growing marijuana and smoking it to ease her back pain.

The raid was tied to a federal crackdown in the war on terror; President Bush has said the illegal drug trade helps finance terrorists.

But the raid also brought federal power into conflict with a 1996 California law that permits doctors to prescribe marijuana to patients, who are allowed to grow the herb. It inspired Monson and Raich to sue, saying the federal government couldn't enforce its ban on marijuana in a state that had legalized its medicinal use.

Nine other states—Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington—have similar laws.

The case was ripe with social and political overtones from the beginning.

The U.S. Court of Appeals for the 9th Circuit in San Francisco—generally considered one of the court's most liberal benches—struck an unexpectedly conservative blow by declaring federal authority subordinate to states' rights in the case.

The Rehnquist-led high court, which has made a hallmark of paring back federal authority, balked when two of the states' rights justices, Scalia and Kennedy, embraced federal authority.

Scalia's position, in particular, baffled some court observers.

David Bernstein, a George Mason University law professor, said it's always disappointing when the court's more liberal members disregard explicit constitutional limits on federal authority, but it's even more so when court conservatives such as Scalia do it.

"It suggests he focuses on the text of the Constitution when it helps him get to the result he's trying to reach," Bernstein said. "It opens him up to criticism that he uses it only for political purposes."

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(c) 2005, Knight Ridder/Tribune Information Services.

PHOTO (from KRT Photo Service, 202-383-6099): SCOTUS-MARIJUANA

GRAPHIC (from KRT Graphics, 202-383-6064): 20050606 SCOTUS MARIJUANA

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