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Ashcroft v. Raich



Suzanne Wills, Drug Policy Chair

January, 2005

On November 29, 2004 the Supreme Court heard oral arguments in the case of two California women who use cannabis to treat their very serious illnesses. The case generated an enormous amount of publicity. The question before the court was whether growing cannabis in a home garden for personal use or to provide to patients without charge as allowed by California law constitutes interstate commerce. Regardless of the outcome the briefs and arguments from both sides of the case were enlightening.

The government was in the curious position of arguing that patients should be prohibited from growing cannabis because home grown medical cannabis would be detrimental to the illegal cannabis market. Supporting the government and chiding Randy E. Barnett, who represented the patients, Justice Antonin Scalia said, "Why is this not economic activity? This marijuana that's grown is like wheat. Since it's grown, it doesn't have to be bought elsewhere."

Solicitor General Paul D. Clement cast doubt on the effectiveness of the nation’s drug war which costs more than $40 billion every year. He said, "The reality is there's a $10.5 billion market -- an illegal market, albeit -- in marijuana in the United States on an annual basis." Justice David Souter pursued this further saying that purchasing illegal cannabis is so easy that patients would buy medicinal cannabis rather than grow their own. "Seems to me the sensible assumption is they're going to get it on the street."

According to a Scripps Howard Texas poll conducted in the fall of 2004, 75% of Texans think people with serious illnesses should be allowed to use cannabis with their physician’s approval. See http://www.texansformedicalmarijuana.org/poll.html. Nationwide 80% agree, yet Congress continues to oppose this right. Supporters of medical cannabis have long contended that one of the government's primary objectives in keeping it illegal is protecting a powerful special interest group, i.e. preventing a medicinal herb from competing with pharmaceutical products for pennies on the dollar. The Solicitor General's brief gave credence to this theory. "Excepting drug activity for personal use or free distribution from the sweep of the CSA [Controlled Substances Act] would discourage the consumption of lawful controlled substances."

From the patients’ point of view, Justice John Paul Stevens asked the most important question, does federal law "trump the independent judgment of the physicians who prescribe it for the patients at issue in this case?" The Court will likely conclude that it does. Still Angel Raich and Diane Monson, two very sick women with quite limited resources, have done a service by bringing their situation and the legal questions that affect them to the national forefront.

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