The Supreme Court, Ashcroft vs. Raich, Medical Marijuana - The Back Story


Pubdate: Sun, 14 Nov 2004
Source: Los Angeles Times (CA)
Section: Sunday Magazine
Author: Carol Mithers

Angel Raich Found a 'Miracle' In Medical Marijuana.

Now She's Asking the Supreme Court to Uphold Her Right to Smoke It.

Angel Raich flicks a butane lighter at the bowl of a small glass pipe, inhales deeply, then, in deference to a guest, blows the pungent smoke out the window of the sitting room in her three-story Oakland home. "Without
cannabis, I would not survive," she says.

The room is pale blue and filled with ceramic angels.

Beside the lavender couch on which Raich sits, a table holds 11 small glass jars of medical-quality marijuana-strains that growers have named Juicy Fruit and Haze. Alas, her favorite, Romulen, "which is really strong," is all used up.

Raich, 39 years old, 5 feet, 4 inches tall, just 100 pounds, with skin the color and translucence of skim milk, is smoking with her physician's blessing. According to the doctor, she suffers from a staggering array of ailments, including chronic severe pain (from scoliosis, temporomandibular joint dysfunction and endometriosis), nausea, life-threatening weight loss, seizures, fibromyalgia and an inoperable brain tumor. "I hurt--every second
of every day," she says. "I wouldn't wish my body on my worst enemy." The lighter flares again.

Marijuana doesn't get Raich high--it hasn't in a long time--and it doesn't kill her pain, but it blunts it, loosens her muscles and joints and gives her some appetite.

She goes through some 9 pounds of the drug a year. She smokes or vaporizes about every two hours, and eats marijuana-laced food. She also massages herself with cannabis oils and balms.

In her words, she is "medicating," in accordance with California's Proposition 215, which passed in 1996 and allows marijuana use if recommended by a doctor. According to federal law, however, she's committing a crime.

The U.S. government doesn't recognize any legitimate use of marijuana, so it remains a Schedule I drug, along with heroin and Ecstasy.

This clash of laws, for eight years the cause of much friction between California and federal authorities, will now be resolved by the U.S. Supreme Court--because Raich forced the issue.

In October 2002, Raich, two growers who supply her with marijuana free of charge, and Diane Monson, another medical cannabis patient, filed suit against U.S. Atty. Gen. John Ashcroft and Asa Hutchinson, then head of the Drug Enforcement Administration. They asked for a court injunction to stop federal government arrests and prosecutions of those who grow, possess or use marijuana for medical reasons.

They lost in District Court, but the U.S. 9th Circuit Court of Appeals reversed the decision in December 2003, ruling that states could adopt medical marijuana laws if the drug wasn't sold, transported across state lines or used for nonmedicinal purposes.

The federal government then filed its appeal, and the Supreme Court agreed to hear the case. Oral arguments are scheduled for Nov. 29.

The court's decision will have national implications. California was the first state to allow the medical use of marijuana, but Arkansas, Arizona, Colorado, Hawaii, Maine, Maryland, Nevada, Oregon and Washington now have similar laws. California likely has the most medical cannabis patients--surprisingly, no one keeps official records, but estimates run from 30,000 to 100,000--as well as an organized and angry pro-cannabis movement. The result has been an ongoing fight that has included busts of patients and pot "dispensaries," and sometimes bizarre law enforcement clashes. An August 2002 raid on Monson's Butte County, Calif., home, for instance, featured a three-hour standoff between DEA agents, who wanted to destroy six marijuana plants, and the county district attorney, who ordered local deputies to protect the weed, at gunpoint if necessary.

Ultimately he was overruled by the U.S. attorney's office in Washington, D.C., and agents chopped down the plants with axes while Monson stood nearby reading aloud the complete text of Proposition 215.

Acting Solicitor General Paul D. Clement, who is arguing Ashcroft vs. Raich for the attorney general, won't comment on the case. His legal brief, however, maintains that exempting medical marijuana from federal drug law would increase drug trafficking, decrease "the incentives for research and development into new legitimate drugs" and "undermine Congress' intent to regulate the drug market to protect public health and safety."

Raich sees the potential loss of the case--and her drugs--in even starker terms. Without marijuana, she says, she will be in constant, excruciating pain, unable to eat and in real danger of death through malnutrition or starvation. "It will mean that the federal government can execute me," she says flatly. "I will have to the leave the country, because I will not be safe here."

Raich is very much the public face of the case that bears her name. For understandable reasons, the marijuana growers involved aren't interested in speaking out--in fact, both sued as John Doe, with their real names kept under seal. Monson, 47, an accountant who has used cannabis to treat back spasms since 1999, says she only wants "to be left alone to pursue my health and happiness. I feel very much forced into my legal actions by the federal government. I led a very private life until the raid on my house."

Raich not only wants to talk, she also has a publicist and courts the press. The "why" is complex.

Certainly she's a true believer.

Medical marijuana, she says, eased her pain, freed her from the disability that trapped her in a wheelchair, literally saved her life. She calls it "my miracle." She also says she found "a new family" in the medical cannabis community, and recognized its fight as the life mission she'd long been searching for. "I'm on the front lines," she declares repeatedly.
"I've been a warrior all my life. I fully comprehend the gravity of what I'm doing. I'm trying to save us all."

As Raich tells it, most of her life was a gothic horror.

She was born and raised in working-class Stockton. Her parents divorced when she was 4. In need of day care, her mother, a dental assistant, asked her parents to watch Angel and a younger sibling.

Soon after and until she finished fifth grade, "my grandfather molested me, threatened me, locked me in closets, held me down, forced me to do things I don't want to go into and you wouldn't print if I did," she says. "It was constant." Relations with her mother, who had remarried twice, deteriorated, and two weeks before her 16th birthday, Raich left home.

She married her high school boyfriend at 18; it was a relationship she describes as violent.

The couple worked as apartment managers, moving from Stockton to Sacramento to Lodi. By 24, Angel had two children; by 25, she had left her husband.

With her kids, she moved again, worked briefly as a massage therapist for a chiropractor, remarried and found an accounting job with a firm that handled billing for trucking companies.

Meanwhile, her health was disintegrating. She'd always been sickly--at 12, scoliosis (curvature of the spine) had required a full-body brace, and during her teens she'd had several surgeries for endometriosis. She also suffered from asthma.

An accident during a brief stint at a lumber mill had left her with a rotator cuff injury in one shoulder, and two car accidents and a fall had further damaged her back. Then in 1995, when she was 30, her endometriosis flared up, and a doctor prescribed birth control pills.

She'd had a bad reaction to the pill once before, but agreed to try it again.

It was a disaster. "By the second day, my right leg was starting to swell.

By the third, it was getting bright red. Over a period of days, it became purple, and it was burning hot. When I tried to walk, I had to drag it. The doctors couldn't figure out what it was."

Before long, the paralysis had spread to the whole right side of her body. Fully disabled and in a wheelchair, she was in constant pain, but every drug physicians prescribed--acetominophen with codeine, Vicodin, Hydrocodone, methadone and Fentanyl--brought horrendous side effects or allergic reactions such as shakes, hot flashes, itching and intense, continual vomiting.

At one point, "angry at God," she tried to cut her wrists. Unfortunately, she says wryly, "I could only use one arm." Then a nurse at a hospital where she was being treated quietly suggested that she try cannabis.

Raich says she opposed recreational drug use, and the suggestion initially offended her. But what happened next is recounted almost as myth. "My daughter would cry at night. 'Mommy, why can't you do the things that other mommies do? Why can't you play with me?' The suffering I saw in her eyes broke my heart. I had to stop it. I got on the computer and started researching."

The pot that "a family member" bought for her on the street eased the pain a bit and gave Raich the push to ask her doctor for a recommendation. (Proposition 215 had passed the year before.) Her husband drove her to a medical marijuana "dispensary," the Oakland Cannabis Buyers' Cooperative. With its better-quality product, she says, "I started getting surges through my legs. I began to move my fingers a little bit. I knew I had found a miracle."

But in 1998, the federal government sued to close the cannabis cooperative, saying that by distributing marijuana, it was violating the 1970 Controlled Substances Act (which makes marijuana illegal to manufacture, distribute, dispense or possess with intent to manufacture, distribute or dispense), and a protracted legal battle began.

Raich was infuriated. She found her own sources, continued to "medicate," and her health continued to improve. By August 1999 she was out of her wheelchair, single again, living in the Bay Area and reborn as a medical cannabis activist.

"The night I tried to kill myself, when I asked God why I had to suffer, I got an answer: 'You can't end suffering if you don't know what suffering is.' The OCBC was like a world opening up to me--I realized that it was where I belonged.

This was part of my destiny, to try to help other patients." Raich volunteered to talk to media, and joined the Medical Cannabis Working Group, which helped the city develop guidelines for the dispensaries and police.

When the cooperative's attorneys took their legal fight to the U.S. Supreme Court in 2001, arguing that the cooperative was distributing marijuana on the basis of medical necessity, Raich became a "spokespatient." By then, cannabis had even given her a new relationship--she and one of the cooperative's lead attorneys, Robert Raich, had fallen in love. They married the next year; Angel's children, now 16 and 18, live with them.

The Supreme Court ruled against the cooperative, and though the court explicitly noted that it was deciding only whether it was legal to dispense marijuana to others, not the legality of possession for personal medical use, raids on patients soon began.

Since September 2001, "about half the federal government's marijuana prosecutions in Northern California have focused on medical cannabis," says Robert Raich. Activists in particular felt targeted, and Angel Raich, who had declared on national television that she wouldn't obey any law that kept her from using cannabis, says she "always wondered when I'd be woken up by my door getting kicked in." In October 2002, Robert Raich, along with David M. Michael, a San Francisco criminal defense attorney, and Randy E. Barnett, an attorney specializing in constitutional law and professor at Boston University School of Law, filed the current suit.

"Angel's effort to enjoin the federal government has to be one of the most courageous steps taken in our movement," says Jeff Jones, co-founder and executive director of the cooperative. He compares the case to Roe vs. Wade.

The strictly legal conflict of Ashcroft vs. Raich is hardly the stuff of drama. In essence, it concerns whether applying the Controlled Substances Act to marijuana grown and possessed within a state, and for which no money changes hands, is unconstitutional under the Commerce Clause of the U.S. Constitution, which regulates interstate trade.

The cannabis activists assert that states have the right to regulate conduct that occurs solely within their borders; the federal government says it must regulate controlled substances within states in order to combat national drug trafficking.

But underlying the dispute is a more basic--and controversial--question: Is or isn't marijuana legitimate medicine?

Activists such as Angel Raich call cannabis a wonder drug that has been vilified by both Democratic and Republican administrations for political reasons and to protect pharmaceutical industry profits. (There are no patents on marijuana plants.) The federal government and those involved in anti-drug efforts vehemently disagree.

In his brief, Solicitor General Clement argues that the Federal Drug Administration "has never approved marijuana as safe and effective for any medical use." A brief filed on behalf of Ashcroft by a coalition of groups including the Drug Free America Foundation Inc., the Drug Free Schools Coalition and Save Our Society From Drugs calls the idea "a step backward to the times of potions and herbal remedies" and claims that sanctioning medical marijuana use would make the drug appear less harmful to the public--and thus lead to its increased abuse.

"Patients who have been misled into believing smoked marijuana provides a safe and effective therapeutic benefit have been misled and exploited by those in the drug legalization movement who know emotional appeals--based on faulty scientific claims--can best achieve their end goals," says Rep. Mark E. Souder (R-Ind.), chair of the House Subcommittee on Criminal Justice, Drug Policy and Human Resources, who with six other representatives also submitted a brief. "If proponents of 'medical' marijuana truly believed that smoking the drug was safe and effective, they would have submitted their data to the FDA."

Scientific examination of these competing claims has failed to issue the definitive blessing or curse both sides would like. Beginning in the 1980s, researchers identified brain and immune system receptors for cannabinoids, the active compounds found in marijuana, which seem to have a natural role in pain moderation. A synthetic version of the cannabinoid THC became available in the late '80s to treat chemotherapy-induced nausea.

Medical cannabis activists claim that these single-cannabinoid synthetics are poor substitutes for the marijuana plant, which contains hundreds of compounds, and are needlessly expensive. (One synthetic, Marinol, currently sells for about $17 a pill.)

In 1988, after the DEA held two years of public hearings on pot's medicinal value, the agency's chief administrative law judge concluded that marijuana, in its natural form, "is one of the safest therapeutically active substances known to man," and recommended its reclassification to Schedule II, which would allow doctors to prescribe it. (The DEA declined the advice.)

In 1997, the White House Office of National Drug Control Policy asked the Institute of Medicine, a component of the National Academy of Sciences, to review scientific literature on the drug. Its eventual conclusion was that "the accumulated data indicate a potential therapeutic value for cannabinoid drugs," and that while many conditions could be treated more effectively with other medications, "there will likely always be a subpopulation of patients who do not respond well to [them]." There was "no conclusive evidence" that smoking marijuana was linked to using other illicit drugs and "no convincing data" that sanctioning medical marijuana would increase its use in the general population.

The Institute of Medicine did condemn smoking as inherently dangerous and specified the need for a smoke-free way to ingest cannabinoids--but also noted that until one was developed, "there is no clear alternative for people suffering from chronic conditions that might be relieved by smoking marijuana, such as pain or AIDS wasting."

It seems fair to say that whatever happens in Ashcroft vs. Raich in court, the federal government has lost the marijuana PR war. According to its legal brief, 25.8 million Americans--about 1 in 11--use marijuana.

A 2002 Time/CNN poll found that 80% of Americans thought adults should be able to use cannabis legally for medical purposes.

In July 2003, Medscape, a website for medical professionals, reported that according to its poll, 3 of 4 doctors and 9 of 10 nurses said they favored decriminalization of marijuana for medical use.

Angel Raich plans to be in Washington when the Supreme Court hears her case. It will be her moment.

At home, her poor health keeps her from doing much, but what energy she has goes to the medical cannabis movement.

For three years, she's headed a nonprofit organization, Angel Wings Patient OutReach, which advocates for the rights of medical cannabis users--and has partly funded her legal battle.

Though it's clear that she's deeply invested in the fight and in her "warrior" identity, she says that all she really wants is for it to end. "Look, I had a really hard life," she says. "I want more than anything to be happy. To feel safe. To spend time with my children and give them what I never had.

"I don't like using cannabis. Sometimes I feel like it's taken over my life--if I wasn't using it, I wouldn't be going through all this. But I have the right to be free of pain, and it's not like I have a choice how. Believe me, if I could just take a pill, I would."

Note: The Court Documents are at
Cited: Raich v. Ashcroft
Bookmark: (Angel Raich)
Bookmark: (Cannabis - Medicinal)
Bookmark: (Chronic Pain)

(This article presented here in full as a public service to all our fans, friends, and Freedom lovers – MR.PETE)