March 15, 2007

Rejecting the right to use medical marijuana.

This was a later stage of the case in which the Supreme Court determined two years ago that Congress had the power under the Commerce Clause to ban home-grown, home-consumed marijuana, even where the state had tried to set up a program regulating the medical use. A question that remained was whether some extremely ill persons could claim a constitutional right to use marijuana out of necessity in the face of great pain or death. The plaintiff in the case, Angel Raich, asserted that she needed marijuana to stay alive.
With obvious reluctance, the three-judge panel [of the 9th Circuit] said there is no right "deeply rooted in this nation's history and traditions'' to use medical marijuana to reduce pain or ward off death. California, whose voters enacted the nation's first law legalizing marijuana for medical use in 1996, has been joined by only 10 other states. The remaining states and the federal government recognize no such right, the court noted.

26 comments:

An Edjamikated Redneck said...

I have to argue with the court over the deeply rooted section.

Up until the Early part of the last century any individual was able to medicate themselves with any substance they chose.

For 2-3 hundred years we were frre to use Medical marihuana; for a hundred we haven't been. Seems to me we ARE deeply rooted in individual choice.

Ann Althouse said...

Why stop at medication?

Molly said...

At least this person understands one of the main reasons marijuana remains illegal. Thank god we have our approved Western traditions of nicotine and alcohol, two drugs that lead to addiction, major health problems and death. Stigma against marijuana first stemmed from racism against its first users in North America: Mexicans and black Jazz musicians.

Dewave said...

The court has it completely backwards, as redneck points out.

And anyway, I'm uncomfortable with the idea that the default position is you can't do something unless you can demonstrate some sort of unbroken history of the 'right' to do so having exited the entirety of our nations history.

I regard the war on drugs as a colossal waste of effort and resources. Hopefully it will come to be viewed as misguided as we now see the prohibition effort was.

NSC said...

Stigma against marijuana first stemmed from racism against its first users in North America: Mexicans and black Jazz musicians.

Huh?

Daryl Herbert said...

The deeply held tradition of banning marijuana began in the early 20th Century when white people noticed Mexicans were doing it.

The 9th Circus falls back on the deeply rooted tradition argument because it doesn't want to deal with the issue on its merits.

NSC said...

Okay, I quickly researched the "Mexican/black jazz musician racism" angle and, while I am far from convinced, I do find it interesting. What is more interesting is this little tidbit:

However, the first state law outlawing marijuana did so not because of Mexicans using the drug. Oddly enough, it was because of Mormons using it. Mormons who traveled to Mexico in 1910 came back to Salt Lake City with marijuana. The church was not pleased and ruled against use of the drug. Since the state of Utah automatically enshrined church doctrine into law, the first state marijuana prohibition was established in 1915. (Today, Senator Orrin Hatch serves as the prohibition arm of this heavily church-influenced state.)

Link - http://blogs.salon.com/0002762/stories/2003/12/22/whyIsMarijuanaIllegal.html

So it was the Mormons it seems. As if poor Mitt Romney didn't have enough troubles, now he has the "dazed and confused" vote to worry about. (And before Doyle slides in a conservative "dazed and confused" insult, let me preemptively do an "all liberals are dazed and confused" comment.)

Zeb Quinn said...

Stigma against marijuana first stemmed from racism against its first users in North America: Mexicans and black Jazz musicians.

The last premise of that tortured tautology, i.e., that the first users were black jazz musicians and Mexicans, has some accuracy.

But even if it's true, only a race-pandering kool aid-drinking liberal would make the quantum leap that any stigma about marijuana use is on account of racism. The stigma is on account of marijuana being an intoxicant. In case you haven't noticed, the government has long sought to heavily regulate if not outright proscribe any and all intoxicants.

An Edjamikated Redneck said...

Ann Althouse said... Why stop at medication?

Taking into account the idea that most alchoholics are using that drug as an anti-depressant, a lot of folks are illegally medicating themselves, just as before the Food and Drug acts locked up the pharmacies some folks were using the medications to escape reality.

I believe the war on drugs was a smoke screen for government controls and attacks on our liberties. Anyone else noticed that since 9/11 we have had very little talk of the war on drugs? Now any new liberty snatch is for the war on terror or against child porn.

Not that I am in favor of either one, but I also don't think we can afford (WARNING- RHETORIC AHEAD) to trade our liberty for security.

The war on drugs wasn't the cause as much as the excuse; just as the war on organized crime was before that and the war on booze before that.

I still wonder why an individual growing and smoking their own, no matter what the reason, is a Federal Case.

giles said...

Redneck, The reason why the Supreme Court deems a person growing marijuana for their personal medical use to be a federal matter is because it might conceivably affect the interstate trade in cannabis, and hence falls under their reading of the Commerce Clause.

Of course, there is virtually no human activity that might not affect interstate trade in some way. The frequency with which wives copulate with their husbands undoubtedly affects the national market for prostitues. Essentially, Congress can now overrule whatever State law they want.

Revenant said...

This is another excellent example of what complete nonsense the courts' abortion rulings are, actually.

Where's the right to control your own body? Where's the right to medical treatments that can save your life? Why do they automagically vanish from the Constitution when the subject is something other than abortion?

An Edjamikated Redneck said...

Revenant, not to hijack this thread, but the right to control your body ends with the decision to engage in sexual activity. you have no more right to control (fatally) the new body than you do the body of it father.

The damage you may do to your own body through the use or misuse of any drug (after all how many prescription drugs have damaging side effects?) is your business.

If, under the effects of that drug you do a damage to someone else or their property, that is a seperate issue, already well defined in the courts.

TMink said...

While the 9 th circuit is appealed more than the rest of the circuits combined and is over turned at a rate more than 3 times the other courts, I would have thought that they would get this one right. Instead, they pooched this one.

Trey

Revenant said...

zeb,

But even if it's true, only a race-pandering kool aid-drinking liberal would make the quantum leap that any stigma about marijuana use is on account of racism.

Oh?

Crack is ruining America's inner cities. Crack is killing policemen, overburdening courts, and filling jails beyond their capacity. Crack is devastating thousands of families. Crack is putting the lives and well-being of our children at risk. Now delete the words "crack is" and insert the words "niggers are." Isn't this the secret message of the drug-free America campaign?

-- Notorious Kool-Aid-Drinking Liberal P.J. O'Rourke

Obviously blaming continuation of the drug ban entirely on racism is silly; I wouldn't even say it is the major reason anymore, although it is a historical fact that it was the major reason for the bans on pot and cocaine initially becoming law.

The major reason for the continuation of the drug ban is that the average voter uses about as many brain cells to think about the wisdom of the drug ban as the average crack user does when deciding to get high. PJ O'Rourke's snide observation aside, the real fact of the drug ban can be found by replacing "crack is" with "prohibition is" in the above paragraph.

redneck,

I'm pro-abortion, but I think you're just making the same point that I did -- abortion is much less about "controlling your body" than drug use is (since two bodies are involved instead of one). The courts, having found a right to one's own body, conveniently forget about it when confronted with laws that truly ARE about nothing more than one person's body (e.g., drug use).

reality check said...

I believe the war on drugs was a smoke screen for government controls and attacks on our liberties. Anyone else noticed that since 9/11 we have had very little talk of the war on drugs? Now any new liberty snatch is for the war on terror or against child porn.

That's right, and we included in PATRIOT stuff not just for terrorism, but to fight the war on meth.

And at least one DA has classified meth as a weapon of mass destruction.

http://www.talkleft.com/story/2003/07/21/419/52209

Still, unitary executive and all, I think the President has the right to be doing all of this, and what we should be asking is not why, but how high (should we jump?)

Frankly, I don't think we're grateful enough to the President for the enormous benefits he has bestowed on us.

http://www.slate.com/id/2161644/pagenum/all/

I for one, welcome my new unitary executive overlords. Because I am a PATRIOT.

Joseph Hovsep said...

Zeb: In case you haven't noticed, the government has long sought to heavily regulate if not outright proscribe any and all intoxicants.

Regulation and proscription are different and that's the issue in this case. The government regulates but allows medical use of lots of intoxicants, from morphine to valium to ritilin to vicadin. So, some commenters here are suggesting that the special treatment of marijuana is rooted in something other than health and safety given the federal government's softer stance on much more dangerous drugs. I don't think race necessarily plays a factor today, but may have when it was first banned and inertia has kept those laws and norms in place despite the lack of a modern scientific justification.

Revenant said...

Still, unitary executive and all, I think the President has the right to be doing all of this, and what we should be asking is not why, but how high (should we jump?)

See, that's the mistake that BDS sufferers typically make -- equating "the President has the right to do that" with "it is a good idea that the President is doing that".

Just because a person doesn't share your belief that "OMFG Bush = teh Hitl3r" doesn't mean that he thinks all of Bush's actions are smart. The President has done many foolish things, but they have with few exceptions been things that we've been letting Presidents do for decades, or even centuries.

I would, in any case, note that Americans lost far more rights during the 80s and 90s than we've lost in the last 6 years. The police already had the right to send paramilitary squads into your house in the middle of the night and seize all your worldy possessions without a trial before Dubya came anywhere NEAR the White House.

mikeyes said...

The government did allow and regulate the medical use of marijauna about 25 years ago. At that time a federal mandate (see below) was passed that let each state set up a panel of physicians who would evaluate claims for the use of marijauna, usually in cases of cancer pain, glaucoma, and several other conditions that were thought to be palliated by marijauna (and are still thought so today) especially if the patient had a history of failure of treatment with standard care.

Not only could you apply for the ability to use marijauna, the federal government would supply to to you in tins of 100 cigarettes for free. All you had to do was apply, pass the board's scrutiny, and register.

Few seem to remember this program, but I do because I was one of the physicians that made those decisions. Here is an exerpt from drugpolicy.org concerning that decision:

In 1978, the federal government was forced to allow some patients access to medical marijuana after a "medical necessity" defense was recognized in court, creating the Investigational New Drug (IND) compassionate access program. The IND, which allowed some patients to receive medical marijuana from the government, was closed to new patients in 1992 after it was flooded by applications from AIDS patients. Today, seven surviving patients still receive medical marijuana from the federal government.

Dewave said...

I believe the war on drugs was a smoke screen for government controls and attacks on our liberties.

I'm inclined to agree. And what we get now are old grandmas being shot down by SWAT teams breaking into the wrong house in hopes of finding some drugs laying about.

Insanity.

Zeb Quinn said...

Regulation and proscription are different and that's the issue in this case. The government regulates but allows medical use of lots of intoxicants

Whatever. My point ran to the supposed racism component involved in the outlawing of marijuana.

The truth is that whatever medical value there is to be objectively found in pot --and based on the research it is minimal-- it lies in ingredients extractable from the THC, but, alas, in a form rendering it non-intoxicating. The problem is that this is not what the medical pot advocates want. They wanna get loaded. That's what medical marijuana is really all about.

Smilin' Jack said...

The plaintiff in the case, Angel Raich, asserted that she needed marijuana to stay alive.

So? Millions have suffered and died to defend our Constitution and our freedom to do whatever the government tells us to do under color of the Commerce Clause.

So just suck it up, granny!

giles said...

"The problem is that this is not what the medical pot advocates want. They wanna get loaded. That's what medical marijuana is really all about."

The plaintif Angel Raich has a brain tumor and cannabis is the only drug she's found that relieves her pain and enables her to eat.

Yeah, it's all just about getting loaded...

I don't think anyone would deny that a bunch of hippies have attached themselves to the medical marijuana issue just so they can toke up. Their idiocy has no bearing on the fundamental issue: sick people are being prevented from gaining effective relief from their suffering because of an asinine attempt by government nannies to protect us from ourselves.

Despite your assertions, the research shows the medical benefits of marijuana to be considerably more than "minimal".

Zeb Quinn said...

Despite your assertions, the research shows the medical benefits of marijuana to be considerably more than "minimal".

It's all anecdotal. The literature doesn't support it. What I've read is that there are legitimate medications in the pharmaceutical formulary available that do everything that medical marijuana advocates say that pot does, and do it better. If you've got something that says otherwise, cite it.

The whole medical marijuana razz-ma-tazz is a canard, propagated as a backdoor means of legalizing it. And the advocates are shameless. They trot out all manner of sick people and other victims to further their cause. If there was any merit to it you'd find that the push to legalize it would be being led by doctors and nurses who have committed themselves to the compassionate care of their patients. But they aren't doing that leading, are they? That's a tell right there.

Revenant said...

It's all anecdotal. The literature doesn't support it.

That's obvious nonsense -- the FDA and World Health Organization, as well as the wider medical community, have recognized for years that the active ingredients in marijuana are medically effective -- that's why Marinol was approved as a drug.

You're right that there is a lack of literature supporting the claim that smoked marijuana is more effective than Marinol pills, but that ignores two obvious facts:

(a): There's no legal way to conduct such studies, outside of a few nations in the world, without government approval, and
(b): Such approval is not forthcoming.

Obviously you don't get much "literature" when the act of producing it carries a prison sentence.

In closing, I would suggest that it doesn't take a lot of scientific research to figure out that a person with violent nausea probably has a harder time with INGESTED medicine than he does with INHALED medicine. Marinol pills might be more effective than a joint, but not if you puke them back up after you swallow them.

Zeb Quinn said...

In closing, I would suggest that it doesn't take a lot of scientific research to figure out that a person with violent nausea probably has a harder time with INGESTED medicine than he does with INHALED medicine.

I don't know where you live, but where I live on the upper left coast smokers are all but being hunted down with dogs, and smoking is no greater an anathema anywhere than within the medical establishment. The sucking of burning branch tarry smoke into lungs as a bona fide medical treatment is a dog that simply won't hunt. Not in any context. Sorry.

giles said...

"smoking is no greater an anathema anywhere than within the medical establishment."

All you're saying is that inhaled marijuana smoke is politically infeasable as a medical treatment. That has no bearing on whether or not it is actually effective.

If ill-informed politics prevent rational decisions from being made, the solution is not to throw up your hands and say "this dog won't hunt". The solution is to influence politics with reason.