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Medical Marijuana Decision

June 6, 2005 at 12:00 AM EDT
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GWEN IFILL: Now today’s major Supreme Court ruling on medical marijuana. I spoke earlier today to NewsHour regular Jan Crawford Greenburg of the Chicago Tribune. Welcome back again, Jan.

JAN CRAWFORD GREENBURG: Thank you.

GWEN IFILL: So the court today, did they just flat outlaw medical — medicinal use of marijuana?

JAN CRAWFORD GREENBURG: What they said today was that federal law, federal drug laws that outlaw the use of medical marijuana trump laws in up to 11 states that had allowed terminally ill patients to smoke marijuana for medical purposes.

The court’s ruling today means that terminally ill patients who choose to use marijuana for medical reasons can now be subject to arrest and prosecution for violating the federal drug laws.

GWEN IFILL: But is it the federal drug laws or the federal commerce laws which were the controlling laws of this case?

JAN CRAWFORD GREENBURG: The federal drug laws. And Congress got authority to pass those federal drug laws from the U.S. Constitution and the commerce clause, and it argued — the Justice Department in defending the application of those laws in these kind of cases — argued that Congress was well within its authority to regulate the use of medical marijuana, even in states like California and others thought it should be allowed for those purposes.

And the court in its decision today, 6-3 decision, agreed that Congress was within its power under the commerce clause of the Constitution to pass these kind of laws, even though they didn’t — you know, when it looked at it on its face, it didn’t look like they had much to do with interstate commerce.

GWEN IFILL: Did the Justices decide that maybe there was no way to quantify what a non-medical use of marijuana? Or did they think non-medical uses of marijuana would flourish because states would allow medical use?

JAN CRAWFORD GREENBURG: That was in the opinion. That’s right, it did. That was in the opinion today, and there was a concern and argument, too, that if Congress couldn’t allow this kind of use of marijuana, medical marijuana, how then could it say — it couldn’t also outlaw marijuana for recreational purposes.

The heart of the ruling today and what the terminally ill patients in California, who had challenged these federal laws as applied in this case, turned on the scope of Congress’ power, and this is an issue that has captivated this court over the last decade. We’ve talked about it many times on this program. And in a series of decisions in recent years, the court has gradually scaled back Congress’ power. It has said that the states had more power to regulate things that affect American lives.

But today in its decision today, the court broadly reaffirmed Congress’ power to come in and regulate this kind of drug use, even though, as the people in California have said, it didn’t cross state lines. It was only grown for their own use.

GWEN IFILL: And it was Justice John Paul Stevens who wrote for the majority, 6-3, and Justice Sandra Day O’Connor, an interesting mix of Justices on both sides of this.

JAN CRAWFORD GREENBURG: It was an unusual lineup. Now, as I said, this court, in recent years, has scaled back Congress’ powers vis-à-vis the states, curtailed Congress’s ability to come in and pass laws, and those cases have been decided generally five to four, with the five more conservative Justices in the majority, the four more liberal in strong dissent.

Today, two of the more conservative Justices crossed over and joined with the four liberal ones to produce that six-justice majority. Justices Anthony Kennedy and Antonin Scalia crossed over to get the result that we had today. Justice O’Connor wrote a dissent that was joined by the Chief Justice (William Rehnquist) and Justice (Clarence) Thomas, saying that states should be able to regulate this kind of behavior.

GWEN IFILL: In fact, she used really strong language. She said this was “pitting the historic spheres of state sovereignty versus the excessive federal encroachment.” That’s pretty apocalyptic language coming from her.

JAN CRAWFORD GREENBURG: And Justice O’Connor has been one of the Justices who strongly has believed in states’ rights, and she says here that if she were a legislature, if she were a California voter, she would not have agreed to pass this law that California passed back in 1996 allowing people to use medical marijuana, marijuana for medical purposes.

But she’s not. She’s a judge, and her role here is to see whether or not Congress can come in and trump that law. And she said the law, the Constitution is clear, and that states should be allowed to pass these kind of laws, that it should be up to the states to make these kinds of decisions.

GWEN IFILL: But Justice Stevens and Justice Scalia, in his concurrence with him, both said that dismissed her arguments out of hand.

JAN CRAWFORD GREENBURG: Right. And they again went back to Congress’ power to regulate commerce. The Constitution gives Congress the power to regulate commerce. And this kind of case, even though the court was just focused on marijuana — homegrown, locally produced, grown specifically for medicinal purposes, not the kind of marijuana that we think that crosses state lines or gets sold and distributed widely — that even in those cases, that affects interstate commerce because it has a tremendous effect on supply and demand in the nation’s market. That was enough, Justice Stevens wrote today, to allow this federal law to trump the state efforts to permit the terminally ill to use marijuana.

GWEN IFILL: Jan Crawford Greenburg, as always, thank you.

JAN CRAWFORD GREENBURG: You’re welcome.

GWEN IFILL: Now, two interpretations of today’s ruling. They come from Calvina Fay, executive director of the Drug Free America Foundation, an organization that favors tougher drug laws and enforcement; and Ethan Nadelmann of the Drug Policy Alliance, an advocacy group favoring legalization of medical marijuana and changing other drug laws.

Calvina Fay, first of all, I want to point out both to you that Jan Crawford Greenburg misspoke slightly. This does not only apply to people who are suffering from terminal illnesses, but all kinds of different kinds of illnesses.

That said, Calvina Fay, what would you say is your interpretation of the justices’ ruling today?

CALVINA FAY: We’re delighted with the ruling. We believe that it is a victory for our parents and our children all over the country. We believe the Justices have upheld our federal drug laws, and they’ve also upheld the process we have in this country of determining what is and what is not medicine and not by-stepped that.

GWEN IFILL: Ethan Nadelmann, your take?

ETHAN NADELMANN: Well, I mean, basically what the Supreme Court did was to confirm the status quo. Those of us who support the rights of patients to use marijuana as medicine with the recommendation of the doctor, we had everything to gain if the Supreme Court had gone the other way and really very little to lose. I mean, Gwen, ever since California and other states began voting to legalize marijuana for medical purposes back in 1996, it’s always been assumed that the federal government, the federal police authorities could come in and arrest people.

The Supreme Court’s decision just says yes, that continues to be the case. Meanwhile, other states that want to legalize marijuana for medical purposes under their law are going to continue to move forward. When 70 to 80 percent of the American public support making marijuana legal for medical purposes, eventually time is on our side.

GWEN IFILL: Can I ask you a question about that because Angel Raich, the complainant in this case, who too took this case all the way to the court, was very upset today. She said after the ruling that she felt that they were taking her life away from her by denying her the opportunity to legally ingest, smoke this marijuana that she needed for relief of her cancer. Do you disagree with her on that?

ETHAN NADELMANN: Well, put it this way. Angel is one of over 100,000 Americans roughly who now have an ID from the state government of California, Alaska, Oregon, or Nevada, Colorado, what have you, that makes them a bona fide legal medical marijuana patient. It means that state police, local police who conduct 99 percent of all law enforcement arrests in this country cannot arrest her, and if they do, she will be let go.

What it does mean is that she still lives with the possibility that the DEA, the federal police authorities could come in and bust her. Now the bottom line is that the DEA has only busted, you know, a handful of dispensaries around the country, mostly in California. They’ve mostly gone after the bigger distributors. So I think whereas Angel has legitimate fear and is obviously disappointed, as am I, with the way the Supreme Court ruled, in point of fact, it’s not going to change the situation that much on the ground.

GWEN IFILL: Let me ask Calvina Fay about that. We just heard Ethan Nadelmann say that the DEA is now capable of going in and busting individuals like Angel Raich who were taking this drug, marijuana, for pain relief. Do you think that that’s going to happen?

CALVINA FAY: The DEA has always had the authority to enforce our federal drug laws. In reality, we do not have individuals who are sick and dying that are going to prison for using drugs. That’s not at all what’s happening. We’ve documented case after case after case of people out in California who are smoking marijuana who claim they’re treating athlete’s foot; they’re treating migraine headaches, backaches; that’s where the problem is. We have people abusing this right and left and using medicine as an excuse to do drugs.

Also, when people are arrested trafficking in drugs, that’s their first defense. They claim that they are growing the drug for medical purposes. Where do you draw the line on what you call a medicine? People feel good when they smoke marijuana. That does not mean they’re treating a medical condition. They feel good when they smoke crack cocaine too, but that doesn’t make it a medicine. This is not at all about medicine. It’s about the legalizations of a mind altering drug, scamming the American public. It’s very interesting that the people that are advocates for marijuana as medicine are people who are also advocating that we legalize all drugs. It’s not our medical groups out there saying we should legalize these drugs as a medicine.

GWEN IFILL: Is that what this is really about, Ethan Nadelmann, a nose – the camel’s nose in the tent, or whatever that term is.

ETHAN NADELMANN: You know, I’ve actually looked at this. The American Nurses Association supports medical marijuana, not full legalization; the American Public Health Association, the same thing; the American Academy of Family Physicians, the same thing. A survey of oncologists some years ago found that roughly half were recommending that their patients go and try to get marijuana illegally to deal with the nausea associated with chemotherapy.

If you look at the people who vote for the medical marijuana initiatives in California and other states, roughly half of them support the broader legalization of marijuana and half do not. If you look at the people who put up a lot of the money for these ballot initiatives or these legislative lobbying efforts, similarly, some of them support voter legalization, others do not.

Bottom line, this is about a substance out there, marijuana, which really works. Hundreds of thousands of people, including people who never smoked marijuana before, find some benefit. If it makes them feel better, if it helps them deal with the wasting syndrome of AIDS, helps them deal with the chemotherapy associated with — or the nausea associated with chemotherapy, if it helps them, as in the case of Montel Williams with his MS, then that should be available. It should be legally available without them being afraid of being arrested or persecuted by state or by federal police authorities.

GWEN IFILL: Ms. Fay, do you expect today’s Supreme Court ruling to have a chilling effect on all these states, these ten states so far which have already done this, ten or eleven states, depending on how you count it, and stop future initiatives?

CALVINA FAY: I think it remains to be seen how each one of those states will address this issue now with this ruling, but I think it definitely will have a chilling effect on the states that are being targeted. Those that are advocating for the out and out legalization of all drugs, including the organization that Mr. Nadelmann represents, have said they’re targeting 23 states in our country this year to legalize marijuana as a medicine. And I think those states will think twice about it, and I think they will look more carefully at the issue, and I do want to encourage the viewers to look at those organizations that he claims have endorsed marijuana as medicine.

The major medical associations in this country have looked at the issue; they’ve rejected it as a medicine. So he’s made some misstatements there. The study he refers to with the oncologists, he didn’t exactly represent that correctly. They frequently link crude marijuana with Marinol, which is a totally different issue. Marijuana is a crude, illegal drug; Marinol, which is a synthetic version of the THC in marijuana, is a legitimate prescription; it’s approved by the FDA; it’s prescribed and we don’t object to that. And that’s evidence right there we don’t need a crude drug to call medicine when we have medical marijuana already.

GWEN IFILL: Let me allow Mr. Nadelmann to respond.

CALVINA FAY: Sure

ETHAN NADELMANN: Well, I mean, first of all most of the studies — you can go to the Web site, drugpolicy.org; you can go to the web site of the National Institute of Health and pop in “therapeutic cannabis” and you can find ample documentation for what I’m talking about.

The bottom line is thousands of doctors, New England Journal of Medicine, the British Medical Journal, the Lancer, have all said very clearly that marijuana works. In the pill form which Calvina is talking about, it works for some people. But there are good studies to show that smoking it or eating the cannabis form actually works a lot better. People are able to titrate their dose; they’re able to limit their intake. That drug Marinol can make people just as high or even higher.

The bottom line is this is an effective medicine that works. And the notion that people should be criminalized or should be persecuted that because they find this medicine most optimal, that’s a horrific thing. The Bush administration talks about compassionate conservatism this is a place where they can lay it on the line and really show what they’re talking about.

GWEN IFILL: Allow me to bring this debate back a little bit to what happened today, rather than debating the entire issue about whether this works or not, the medical issue. Let’s go back to the legal issue for a second.

Ms. Faye, do you think Congress now will step in and do something to bring this issue back or do you think it’s over?

CALVINA FAY: I think clearly that Congress has a right to look at whether we are going to call marijuana or any drug a legal drug or keep it as a Schedule One drug; that’s certainly a role that they have the right to do. I think, however, if you look at the history, our Congress spent quite a bit of time looking at the issue. They established a very well defined procedure in this country for determining what is and is not medicine. It’s the FDA process.

And I think it’s very unlikely that they would undo that and it was put in place for a very good reason. And my question is that if those that want to legalize drugs and they want to label marijuana as a medicine, if they’re so certain that it is a medicine, why don’t they take it to the FDA? Why don’t they do the research and get the evidence in hand and take it to FDA and go for FDA approval? I can tell you the answer is, is because they know it can’t be approved.

GWEN IFILL: Mr. Nadelmann, there’s time for a brief response. What happens in Congress?

ETHAN NADELMANN: In Congress, that’s a good question, Gwen. In the next few weeks, Congress is going to be considering the Hinchey-Rohrbacher Amendment, which would prohibit the Justice Department from spending a penny to go after medical marijuana in any of the states that have made it legal.

Drug policy alliances and other organizations are working very hard to pass the bill. Seventy percent of voting Democrats have supported it in the past; a handful of Republicans. Your viewers can go to our Web site, drugpolicy.org and enlist and participate in the effort to get Congress to approve this amendment, because this will send a powerful national message from Congress that they’re hearing the voices of the vast majority of the American people on this important issue.

GWEN IFILL: Ethan Nadelmann, Calvina Fay, thank you both very much.

ETHAN NADELMANN: Thank you, Gwen.