Winter/Spring 2005
O'Shaughnessy's
Journal of the California Cannabis Research Medical
Group
|
Rob Raich on the Judgement
By O’Shaughnessy’s News Service
Technically, the U.S. Supreme Court will be issuing a “judgment” on the Ninth
Circuit Court of Appeal’s ruling that prevented the feds from interfering with
patient Angel Raich and those who grow her cannabis, and Diane Monson, who
grows her own. The key section of the judgment will probably be one word — “affirmed” or “reversed.” The
judgment could also affirm in part and reverse in part.
The judgment will be accompanied by a written opinion explaining the reasoning
behind it. Individual justices may issue concurring and dissenting opinions
emphasizing aspects of the case they consider important.
A straightforward affirmation or reversal could be on any number of legal grounds.
The Commerce Clause was the only issue the Ninth Circuit addressed, so the
opinion almost certainly will address it. But the Court could also base its
ruling on grounds raised by Raich that the 9th Circuit did not address: necessity,
federalism, fundamental rights and individual liberties, or a statutory interpretation
of the Controlled Substances Act. All Raich needs in order to win is a majority
agreeing on the result.
For example, O’Connor and Ginzburg, who’ve had brushes with cancer, might decide
to affirm on grounds of medical necessity (warding off a greater harm). They
could be joined by three conservatives seeking to limit Congressional power
under the Commerce Clause. Or by Stevens, Breyer and Souter agreeing with the
federalism argument (states should be “laboratories of reform”).
Ever the optimist, Robert Raich says the Court could craft a favorable decision
while avoiding the constitutional issues: “They could interpret the Controlled
Substances Act as not broad enough.” The CSA makes it “unlawful for a person
knowingly or intentionally to possess a controlled substance unless such substance
was obtained directly, or pursuant to a valid prescription or order, from a
practitioner, while acting in the course of his professional practice.” Therefore,
Raich argues, the patient who has obtained a controlled substance via a physician’s “valid
order,” has not violated the act.
The Court also has the option of sending the case back to the district court
for a factual determination on, say, how medical cannabis use in California
actually affects the price of marijuana sold on the illicit interstate market.
There would then be a trial, with each side calling experts and presenting
the results of surveys.
The Raich ruling will in-fluence how cities and
counties relate to dispensaries.
The Raich ruling will influence how cities and counties relate to
dispensaries. As explained by Dale Gieringer in the story beginning
on page 1, many jurisdictions have used the looming Supreme Court case
to put a moratorium on cannabis clubs, limit the number allowed, or
otherwise restrict their operations (can’t be 1,000 feet from a school,
church, or playground; no medicating on the premises, etc.). Even Oakland,
which had pioneered legal distribution and where a thriving cluster
of clubs had brought a moribund neighborhood to life, limited the number
of clubs to four in 2004, forcing the others to move, close, or go
underground. All these local bans and freezes and restrictions on dispensaries
are the work of politicians who should be upholding California law.
They opposed Prop 215, resented it all along, have no respect for the
will of the voters, and now they can hardly wait for the federal threat
to become a cruel reality.
There could be a victory for Angel Raich and/or Diane Monson that does not
protect cannabis dispensaries. If the Court rules only on Commerce Clause grounds,
a given city could say, “We will allow individual patients to cultivate, like
Diane, and individual caregivers to give their medicine away for free, like
Angel’s John Does, but we still aren’t going to let collectives and cooperatives
exist (even though they’re legal under state law).”
It all depends on how the justices frame the opinion. There is no handy scorecard
we can offer to preview the Supreme Court ruling in Raich; there are too many
combinations and permutations. Robert Raich emphasizes this point: “Even if
we lose this case, it will not affect state and local laws currently on the
books that protect medical cannabis patients. This is important because the
federal government only makes about one percent of all marijuana-related arrests
in this country.”
Raich acknowledges that a few raids on dispensary proprietors and growers could
keep all the others living in fear, “but statistically, individual patients
will be 99% safe,” he says. “Avoid unnecessary fear.”
Raich says he learned a lesson from how the media and law enforcement “spun” the
Supreme Court decision in the Oakland CBC to imply incorrectly that Prop 215
had been invalidated. In OCBC the Court ruled that a dispensary could not claim “medical
necessity” as grounds for possessing and distributing cannabis. The Court did
not rule on whether an individual had a medical-necessity defense, and in no
way did the decision overturn California’s medical cannabis law.
In the event of an unfavorable Raich ruling, dispensaries
will be most at risk.
In the event of an unfavorable Raich ruling, dispensaries will be
most at risk. Growers can try to remain anonymous, but retail establishments
will have a hard time doing so. Some may fold, some may stop advertising
or otherwise seek a lower profile, some may go underground. But many
will continue doing business as usual and hope that the feds don’t
have the resources or the political will to move against them. They
may take heart from the fact that when the Supreme Court ruled negatively
in the OCBC case in 2001 there were only about 25 cannabis dispensaries;
now there are an estimated 150.
The Historic Hearing
People anxious to watch oral arguments in Ashcroft v.
Raich started arriving outside the U.S. Supreme Court around 4:00 a.m
on Monday, Nov. 29. Frank Lucido, MD, Angel Raich’s doctor, and Jeff
Jones of the Oakland Cannabis Buyers Co-op were close to the front.
By 9:00 more than 200 concerned citizens had formed an L-shaped line across
the wide plaza. What once would have been an unobstructed view of the Capitol
(with symbolic meaning, since the Court rules on the legality of what Congress
does) now consists of backhoes, trucks, ditch-witches, porta-potties, barricades
(huge round tubs of concrete), cyclone fencing, wooden fencing, and non-union
construction workers and rent-a-guards milling about. The sun was bright, the
temperature around 40; the heavy equipment was kicking fine sand into the air
as the line began to move.
More than 100 media types and others with connections had guaranteed seats.
Reporters who cover the court regularly get box seats along one side of the
courtroom (stage left); we in the overflow were seated behind them and behind
a wall with arched openings. Not all the Justices could be seen through the
arches.
Your correspondent had an excellent view of Justice Stephen Breyer (thin, bald,
sepulchral) and Clarence Thomas (who looked bored, the only judge who asked
no questions). A public information officer gave out a scorecard with pictures
of the Justices, numbered 1-9, and she held up fingers to indicate who was
speaking. Scalia was #4, the clean-up hitter.
Justice Stevens presided because Chief Justice Rehnquist is undergoing treatment
for thyroid cancer. Stevens announced that Rehnquist intends to read the transcript
and vote on Ashcroft v. Raich.
Activists are spinning fantasies about Rehnquist, unable to bear the nausea
of chemotherapy, obtaining relief from cannabis and turning into an advocate.
David Michael, Diane Monson, Randy Barnett, Angel McClary Raich,
and Robery Raich |
The Government’s Case
Each side gets half an hour to restate and defend the arguments made in written
briefs that the judges have already read. The petitioner goes first.
The Department of Justice and the Drug Enforcement Administration are petitioning
the Court to invalidate an injunction, issued by the 9th Circuit Court of Appeal
in October 2003, allowing Angel Raich and Diane Monson to obtain and use cannabis
in accordance with California law.
Acting Solicitor General Paul Clement remade the key points: Congress is entitled
to enforce the Controlled Substances Act. Californians growing and using cannabis
within the state will inevitably have an impact on interstate commerce. The
relevant precedent was set by Wickard v. Filburn, a 1942 case upholding the
federal government’s right to limit the amount of wheat a farmer could grow
for home consumption.
O’Connor interrupted Clement to ask why the Lopez and Morrison rulings shouldn’t
apply. In Lopez (1995) the Court struck down a federal law banning possession
of a gun within 1,000 feet of a school because it didn’t involve economic activity.
Morrison (2000), similarly, struck down a law entitling rape victims to sue
assailants in federal court. The Lopez and Morrison rulings were said to reflect
the Court’s “new federalism,” a tilt towards states’ rights.
Lopez and Morrison did not undo but “preserved” Wickard, said Clement.
O’Connor noted that the marijuana used by Raich and Monson did not involve
interstate commerce. But inevitably some marijuana would be diverted into interstate
commerce, said Clement, if all California’s medical users and their growers
became legal.
O’Connor’s tone implied that she was trying to poke holes in the government’s
position, but she could have been trying to elicit winning arguments to employ
on behalf of the government in the Supremes’ internal debate.
O’Connor asked whether California law enforcement wouldn’t suffice to ban diversion
to the non-medical market. Marijuana is “fungible,” said Clement, meaning there’s
no way to distinguish “medical” marijuana from the non-medical kind; one could
be sold instead of the other.
Scalia pointed out a difference between Wickard and Raich: “Congress presumably
wanted to foster interstate commerce in wheat. Congress doesn’t want interstate
commerce in marijuana.”
Clement repeated that diversion of marijuana was inevitable in an annual national
market of $10.5 billion. “Any little island of lawful possession” would undermine
regulation by Congress.
Clement falsely stated that any beneficial effects
of marijuana could be obtained legally via Marinol.
Clement falsely stated that any beneficial effects of marijuana could
be obtained legally via Marinol. “To the extent there is anything beneficial,
health-wise, in marijuana, it’s THC, which has been isolated and provided
in a pill form.” Herbal cannabis contains hundreds of other compounds,
some of which exert modulating effects. Precise dosage and immediate
onset can be achieved by smoking.
Justice Ginsburg noted that one of the plaintiffs had taken “30-odd drugs and
none of them worked.” Would she have a defense if the federal government were
to prosecute her?
The Oakland CBC ruling left open the question of
whether individual patients, as opposed to clubs, could invoke medical
necessity.
Such a prosecution would be “unlikely,” Clement said, but the Oakland
CBC ruling would preclude a medical-necessity defense. [Not true —the
OCBC ruling left open the question of whether individual patients,
as opposed to clubs, could invoke medical necessity.]
Justice Kennedy asked about the impact on price if Californians were allowed
to grow their own marijuana for medical use. “I think the price would go down,” Clement
said. That would be the opposite of what Congress wants.
“When the government thinks that something is dangerous, it tries to prohiit
it,” the General solicitously explained. “Part of the effort of prohibiting it
is going to lead to a black market, where the prohibition actually would force
the price up... Although not primarily designed as a price regulation, the Controlled
Substances Act does have the effect of increasing the price for marijuana in
a way that stamps down demand.” (Theoretically, General; but in reality it also
creates price supports for manufacturers and distributors. Not to mention all
that work for law enforcement.)
Clement again brought up Marinol. Sales of this “more helpful substance” would
be lowered if people could grow and use cannabis —an obvious impact on interstate
commerce. “The manufacturing [of Marinol] provides an unambiguous hook for
Congress to exercise its Commerce Clause authority.” One wonders if that was
a factor in the decision to legalize Marinol in the 1980s.
Justice Stevens asked if the Controlled Substances Act “trumps the independent
judgment of the physicians who prescribe it?”
Clement: “the federal regulatory regime does not allow individual patients
or doctors to exempt themselves out of that regime.” (Next time you’re sick,
call a Congressman.)
Stevens asked if a “judicial tribunal” could find, contrary to Congress, that
marijuana is effective medicine.
Clement played the Marinol card again.
Only if the case involved an FDA review of the scheduling decision,
according to Clement. He played the Marinol card again. “It’s wrong
to assume that there’s any inherent hostility to the substance at issue
here. I mean, the FDA, for example, rescheduled Marinol from Schedule
II to Schedule III.” (Which shows that the FDA is not inherently hostile
to synthetic corporate drugs.)
Ginsburg —who has had surgery for breast-cancer and almost certainly knows
people who have used marijuana for nausea and pain— asked if there had been
any challenges to marijuana’s Schedule I status. Clement said there’d been “a
number of those petitions,” as if the reviews had been fair and unbiased.
He said the Institute of Medicine study had concluded “whatever benefits there
may be for the individual components in marijuana, smoked marijuana itself
really doesn’t have any future as medicine” because the plant contains too
many chemical components to evaluate, and “smoking is harmful.” [The Institute
of Medicine Report is like the Bible, you can quote it to make any point.]
Clement came close to saying that marijuana is not medicine because it doesn’t
come from the pharmaceutical industry. “A big part of the process of medicine,
generally, is to take raw, crude material that somebody could grow in their
garden, and actually have people who do this for a living get involved in a
process of synthesizing and isolating the beneficial components, and then manufacturing
and making that available.”
One more plug for Marinol: “What does have a future for medicine is an effort
to synthesize and isolate the beneficial component. That’s been done with Marinol...
It takes longer to get into the bloodstream; but that’s also one of the reasons
why the FDA has made a judgment that Marinol is less subject to abuse.”
The Citizens’ Case
Randy Barnett, a libertarian professor of constitutional law, argued for Raich-Monson
that their activity —growing and using cannabis as medicine— had been entirely
intrastate and non-economic. The feds need not ban such activity in order to
regulate illicit drugs.
In response to questions from Kennedy, Barnett said that the fungibility of
marijuana does not mean possession for personal medical use is economic activity.
Scalia compared possessing marijuana for medical use to owning a plant or animal
protected by the Endangered Species Act. Barnett said that banning ownership
of endanged species might be “an essential part of a larger regulatory scheme.” Owning
marijuana for personal medical use was “isolated by the State of California” and
policed by the state.
“I understand that there are some communes that
grow marijuana for the medical use of all of the members of the commune.” —Antonin
Scalia
Scalia was skeptical that California could “isolate” the activity
to medical users. He said, “I understand that there are some communes
that grow marijuana for the medical use of all of the members of the
commune.”
Barnett said that California law would not allow “buying and selling.” Scalia
was not mollified. “No, no, they’re not buying and selling. I mean, you can’t
prove they’re buying and selling. There are just a whole lot of people there
with alleged medical needs.”
Justices Breyer and Souter pursued the point that California couldn’t effectively
limit the set of medical users. Breyer foresaw large numbers of cannabis consumers
resulting in lowered prices, thus undermining the feds’ ability to control
contraband. Barnett implied that the government’s figure of 100,000 overestimated
the number of medical users in California. [Barnett attributed the high estimate
to NORML. It was first published in the Spring ’04 O’Shaughnessy’s, based on
input from Dale Gieringer of Cal NORML, and seems like an underestimate today.
It felt odd to hear Barnett argue “it’s a very small fraction of persons that
would be involved” if the feds allowed medical marijuana use. In fact, millions
would be better off using marijuana than using pharmaceutical anti-depressants,
analgesics, anti-emetics, etc.]
Ginsburg asked whether a ruling for Raich-Monson would authorize cultivation
of marijuana by medical users in states that hadn’t legalized it. Barnett
said it depended on how the Court’s ruling was crafted. If the activity
is non-economic, Congress can regulate only as needed “to enforce a
broader regulatory scheme.” Congress doesn’t have to ban medical use
of cannabis in order to limit interstate commerce in contraband.
Scalia asked how the Raich case differed from Wickard v. Filburn,
in which a family was eating their homegrown wheat. Barnett said Filburn
was also feeding wheat to livestock that were sold on the market: “The
wheat was grown as part of a commercial enterprise.” The Wickard aggregation
principle only applies to activity that is commercial in nature, Barnett
argued; the aggregated effects of non-commercial activity are irrelevant.
Stevens asked about the likely effect on the price of marijuana on
the interstate market (if Raich prevailed). Barnett, not sounding totally
sure, predicted “a slight trivial reduction.” Stevens disagreed.
Souter sounded skeptical about Barnett’s “argument for triviality.” He
said, “I take it you accept the assumption that the more people who
are involved —if there are millions and millions, it is unlikely that
this licensed activity is going to be without an effect on the market.
So the whole argument boils down to how many people are going to be
involved...”
Souter then asked the population of California and Barnett couldn’t provide
the answer. (Kennedy did: 34 million.) Souter tried to estimate how many might
be in chemotherapy —100,000? His point was, “isn’t it economic activity if
it has a large effect on the market?”
Barnett differentiated economic activity from personal activity by using prostitution
as an example of the former. “We could be talking about virtually the same
act,” but that does not make sex within marriage economic activity. The nature
of the activity determines if it is economic, Barnett argued.
“Medicine by regulation is better than medicine
by referendum.” —Justice Stephen Breyer (echoing Dr. Harold Varmus)
At this point Breyer suggested that Raich-Monson should petition the
FDA! He sounded like a civics teacher explaining how (and that) the
system works “They would say to the FDA, ‘FDA, take this off the list.
You must take it off the list if it has an accepted medical use and
it isn’t lacking in safety... And while the FDA can make mistakes,
I guess medicine by regulation is better than medicine by referendum.” This
last phrase was quoted by every reporter who filed a story. It echoes
the enlightened-sounding comment of Breyer’s friend, Dr. Harold Varmus,
who was director of the National Institutes of Health when Prop 215
passed: “Nobody wants to settle medical issues by plebiscite.”
[Varmus convened a panel of “experts” to settle the issue. That was back in
February, 1997.]
Barnett urged Breyer to read the amicus brief written by Rick Doblin, PhD,
describing the endless runaround that would-be researchers have gotten over
the years from DEA, NIDA, and HHS [see story on page 7].
Barnett also pointed out that the Institute of Medicine Report acknowledges
that some people benefit even from smoked marijuana. Barnett’s tone was slightly
apologetic (smoking, the sin of all time!) and he missed an opportunity to
inform the Justices that for nausea there is no better drug and delivery system
than herbal cannabis and inhalation.
Kennedy asked if prescriptions were limited to cases where marijuana saved
lives. “It is limited to a list of illnesses,” said Barnett, instead of acknowledging
the open-ended wording of California law and the doctors’ gatekeeping role.
Ginsburg asked a final procedural question: can you enjoin criminal prosecutions?
Barnett said Raich and Monson were seeking to enjoin the seizure of marijuana,
which had already occurred.
Clement, in the few minutes he had reserved for rebuttal, emphasized that the
case wasn’t about two individuals. He repeated estimates of 100,000 to 170,000
medical users in California. He quoted the broad definition of illness that
can be treated by cannabis under California law. He cited a California case
in which the defendant, caught with 19 separately packed ounces of marijuana
and a scale, was allowed to present a “medical-user” defense. Clement also
cited the WAMM case, in which 250 cannabis users —a vast hoard!— claimed protection
under the law.
Commentary
Many learned observers think the Justices’ questions implied a looming victory
for the federal government. Linda Greenhouse of the New York Times, in the
press room after the hearing, predicted a 9-0 vote. However, Pebbles Trippet
of the Medical Marijuana Patients Union expects support for Raich from Ginsburg,
Thomas (“the commerce clause scholar on this court”), Stevens, and O’Connor
(who is often a swing vote). “Anything can happen,” says Trippet. Breyer’s
references to the FDA indicate that the Court might punt —avoid deciding the
Constitutional question and extend the stall in the name of Science.
Whatever happens, coverage of the Supreme Court hearing has made the American
people even more aware that marijuana is safe and effective medicine. Angel
Raich and Diane Monson, although opposites in many ways, are both convincing
advocates. There is a desperate edge to Angel, who looks emaciated and says
urgently that she would die without cannabis (from which she derives no pleasure
except pain relief). Monson is calm and businesslike —an accountant, she is
living proof that cannabis use doesn’t undermine one’s ability to do work that
requires sustained attention to detail. Her claim isn’t that cannabis is keeping
her alive, only that it enables her to function.
Note on Raich (The Linder Decision)
By Pebbles Trippet
Raich v Ashcroft is the most significant case dealing with medical freedom
to face the court since the Roe v Wade decision affirmed women’s reproductive
rights and doctors’ role as gatekeepers of medical decisions.
There has never been a U.S. Supreme Court ruling on the constitutional rights
of cannabis patients under state law —until now.
Raich set federal precedent for an individual’s right to grow marijuana for
medical purposes. It led to Santa Cruz v Ashcroft, which went further, setting
precedent for medical cannabis collectives, i.e., patients engaged in collective
cultivation of marijuana for their personal medical use under state law.
Santa Cruz v Ashcroft still stands as 9th Circuit precedent for collectives
but undoubtedly will be challenged if Raich is reversed.
Linder v US (1925) (268 US 5) reviewed the same jurisdictional question under
the Commerce Clause from the physician’s perspective 80 years ago. “Obviously,
direct control of medical practice in the states is beyond the power of the
Federal Government.”
The court concluded: without interstate commerce, the federal government has
no jurisdiction to reach into the practice of medicine within a state.
The same principle applies to cannabis patients as applied to Dr. Linder. The
Linder ruling has never been overturned as to supplying small amounts of drugs
to patients for medical purposes, similar to physician-authorized self-supply
of small amounts of plants.
Raich’s legal team raised the Linder precedent in their 9th Circuit brief and
their U.S. Supreme Court brief (p.41).