Have you ever seen the Supreme Court... on weed?!

Ashcroft V. Raich
Question at hand:
Wether the Controlled Substances Act, 21 U.S.C. 801 et seq., exceeds Congress's power
under the Commerce Clause as applied to the intrastate cultivation and possession of
marijuana for purported personal "medicinal" use or to the distribution of marijuana
without charge for such use.

Recently the Court (sans Rehnquist who wrote the Commerce Clause) heard arguments on both sides of a case involving (mainly) two California residents who say medical marijuana helped them survive spinal degeneration and a brain tumor. While California state police said their possession of marijuana was legal within state and local law (homegrown), the governments DEA agents said it was illegal (based on the Controlled Substance Act) and seized their medicine.

Ms. Raich’s doctor has said that she would die if she didn’t smoke pot. It increased her appetite, weight, and helped her deal with nausea and pain associated with chemotherapy. The same is true for many other patients in California and the 11 other states that have passed medical marijuana laws. Yet the Controlled Substances Act disregards any medicinal value for marijuana.

The 9th Circuit Court of Appeals ruled in favor of Ms. Raich. The government then appealed to the Supreme Court.

The ruling will be based on wither or not Congress has the authority under the Commerce Clause to stop the use of medical marijuana based on its effects on interstate commerce.

Here are some of the arguments put forth yesterday (highlighted in the Times):

Randy Barnett, a law professor at Boston University who argued on behalf of the two women, said medical use of marijuana was a noneconomic activity that falls outside the power of Congress to regulate trade among the states.

Justice Antonin Scalia said Congress also has adopted endangered species laws making it unlawful to possess items such as eagle feathers or ivory. "Are those laws likewise unconstitutional?'' he asked.

Justice David Souter asked Barnett about the government's estimate that as many as 100,000 people could use marijuana for medical purposes if the court rules for the two women. Barnett disputed the 100,000 number.

But Souter said there could easily be 100,000 cancer patients undergoing chemotherapy in California. He said that would undercut Barnett's argument that the amount of marijuana used for medical purposes would have a "trivial impact'' on the market nationwide and on prices.

Market for marijuana? Prices? I thought if a drug is illegal, it shouldn’t have a market. “By limiting the money going into the market it affects commerce.” OF MARIJUANA? I guess it’s OK to sell but it’s not OK to grow or get for free. Is this starting to sound like the opening scene of Pulp Fiction to anybody else?

After seeing so many commercials about how the sale of marijuana is funding terrorists, I wonder where a member of the Justice Souter gets off wanting to make a ruling based on the impact of medicinal marijuana on the market and prices for said illegal drug.

Justice Breyer then said. "Medicine by regulation is better than medicine by referendum.'' The California law was adopted in a voter referendum in 1996.

This is where the court finally made sense. Marijuana is poorly studied and there is a lack of interest by the pharmaceutical companies, and many federal hurdles to study this drug on a large scale. The Pharmaceutical’s and the FDA should team up and design a double blind placebo controlled study to evaluate the risks and benefits of marijuana. Since the government controls marijuana, the FDA could supply the drug for the study. Surely, the industry wouldn’t have any problems enrolling patients for such a trial (one of the costliest aspects of clinical research). However, developing an herbal medication can drastically reduce the return on investment. One alternative is applying for a patent on a strain of marijuana. Another is treating marijuana as an herbal.

Of course, the FDA was founded based at a time when people were selling tapewormeggs in the form of diet pills. The FDA the shield between the citizens and thecircus tent poison…err potion sellers. Today we are in an age of diet pillsbeing sold as “natural remedies” because they come from naturally occurringherbs, immune to the agency’s tentacles of regulation. Why not treat marijuanaas an herbal? Does it not have the same propensity for abuse as ephedrine?

Instead, the FDA and the Pharmaceutical industry kill pain with Vioxx. While the risks of marijuana are somewhat mysterious and poorly documented in clinical trials, the risks of Vioxx are nothing short of murderous.

I think the Supreme Court should decide this case in favor of Ms. Raich, where her doctor chose a painkiller that at best allowed her to live long enough to face the justices, and at worse didn’t cause a stroke.