From the ground up

December 01, 2004

THE SUPREME COURT was understandably skeptical this week of the proposition that states can individually regulate the medical use of marijuana.

A hodgepodge of conflicting statutes on how the cannabis plant is to be grown, processed and distributed is impractical. And keeping medicinal marijuana separate from the huge underground market for illegal, recreational weed seems all but impossible.

Further, a decision on behalf of state sovereignty that undercuts Congress' power to regulate interstate commerce would set a dangerous precedent that could be used to unravel such laudable federal protections as civil rights laws.

Yet sometimes when the federal government refuses to respond to a common-sense notion arising from the grass roots, the court finds a way to endorse the popular will.

That's what should happen in the matter of medical marijuana -- if not in the case now before the court, perhaps on one based on different legal grounds.

Cannabis has been used as a medicine for thousands of years and was legally prescribed in this country until 1937, when Congress decided to ban the drug -- making it available only through illegal means.

In recent years, though, doctors and patients who have managed to obtain marijuana have found it increasingly valuable in the treatment of AIDS, cancer and other wasting diseases. Angel Raich, one of two women central to the case currently before the court, contends she would be dead from a brain tumor without the pot she smokes every couple of hours.

The most orderly fix would be for the Food and Drug Administration to reclassify marijuana for medical use and regulate it on a national basis. Justice Stephen G. Breyer suggested during oral arguments this week that a refusal by the FDA of such a request might be grounds for a lawsuit charging the agency with abusing its discretion.

An argument could easily be made that the Bush administration -- as represented by Attorney General John Ashcroft and drug czar John P. Walters -- has stubbornly refused to even consider the medicinal value of marijuana, labeling its proponents the dupes of potheads whose true goal is legalizing the drug for recreational use.

Such federal obstinacy prompted advocates to work from the ground up, winning permission in a dozen states for legal use of marijuana as a medicine. Maryland took a half-step this year by allowing state judges to consider medical use a defense against charges of marijuana possession. The Supreme Court is now considering whether marijuana grown and possessed -- but not sold -- in a single state is subject to the federal ban because of Congress' power to regulate interstate commerce.

Odds are the court will say yes. But the justices will be serving the country well if they also provide a road map for removing an arbitrary prohibition that ignores human suffering in order to impose a view shaped by politics and prejudice instead of science.

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