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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).

 

 

O'Shaughnessy's
O'Shaughnessy's is the journal of the CCRMG/SCC. Our primary goals are the same as the stated goals of any reputable scientific publication: to bring out findings that are accurate, duplicable, and useful to the community at large. But in order to do this, we have to pursue parallel goals such as removing the impediments to clinical research created by Prohibition, and educating our colleagues, co-workers and patients as we educate ourselves about the medical uses of cannabis.
 
SCC
The Society of Cannabis Clinicians (SCC) was formed in the Autumn of 2004 by the member physicians of CCRMG to aid in the promulgation of voluntary standards for clinicians engaged in the recommendation and approval of cannabis under California law (HSC §11362.5).

As the collaborative effort continues to move closer to issueing guidelines, this site serves as a public venue for airing and discussing these guidelines.

Visit the SCC Site for more information.