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Read 'This Precious Cause': Medical Marijuana and Disability Rights.



The Supreme Court's marijuana ruling is a real blow to people who have life-limiting symptoms that can only be alleviated by marijuana.
photo of marijuana leaf

What Next?

By Cal Montgomery

The Supreme Court ruled in Gonzales v. Raich et al. on June 6 2005 that the federal law that makes possessing or using marijuana a crime outweighs California's state law permitting the medical use of marijuana.

California has a law on the books, the Compassionate Use Act (CUA), authorizes some people to use marijuana with the approval of their doctors. Two Californians who are covered under that law, Angel Raich and Diane Monson, filed suit to stop the Drug Enforcement Agency (DEA) from enforcing the federal Controlled Substances Act (CSA) -- part of the government's ongoing attempt to keep people from growing, manufacturing, buying, possessing, using, and selling certain substances -- when it came to them growing, getting, or using marijuana as long as they were in compliance with the CUA. Monson, who grows her own marijuana, had been raided by the DEA. Agents had destroyed her six marijuana plants.

Justice Stevens, in the majority opinion, writes that

The case is made difficult by respondents' strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress' power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case.

In other words, Congress has the power to make laws when it comes to interstate commerce, and that includes the power to forbid local non-commercial activity that "exerts a substantial economic effect on interstate commerce." Such as, for example, growing marijuana for your own personal use, when you've been authorized to do so by the state of California.

Justices Breyer, Ginsburg, Kennedy, and Souter signed Justice Stevens' opinion. Justice Scalia agrees with the decision, but offers a slightly different explanation as to why it is correct. Chief Justice Rehnquist and Justices O'Connor and Thomas dissented.

So what does this mean for disabled people?

Well, for one group of disabled people -- those who have life-limiting symptoms that can be alleviated by marijuana and cannot be managed as well or at all by other means -- this is clearly a huge step back, along the lines of rules that leave people who can manage in their homes without wheelchairs, but need them in order to go out, from getting the chairs they need.

David Michael, who is one of the lawyers for Raich and Monson and also a member of the National Organization for the Reform of Marijuana Laws Legal Committee, predicts that "the decision will have a serious effect on the medical cannabis community in the states that have medical cannabis laws." He doesn't "think that federal law enforcement will move against people who are sick and dying because of the strong public policy in support of medical cannabis, but [does think that] the Federal government will move against the infrastructure implementing medical cannabis laws such as distributors, growers, cannabis clubs, and the like, which will make it far more difficult for those in need to obtain their medicine."

Clearly, cutting off the supply is likely to leave users in a better position than they would be if they were imprisoned. But, argue activists and advocates, given the underlying reasons they want to use marijuana in the first place it sure doesn't leave them in a good one.

Ten years ago, this would not have seemed like a disability rights issue to me -- and if you go back and read some of my earliest writing for Ragged Edge you will recognize that But I have been slowly moving toward an understanding of disability rights that includes precisely this sort of thing.

Nondiscrimination is of course a disability rights issue; and the removal of barriers in the physical and social environments is necessary to move toward an environment of nondiscrimination.

But barrier removal isn't enough for people who do not have access to the goods, services, and support they need in order to take advantage of nondiscrimination. To go back to the wheelchair analogy, imagine that you're a person with mobility impairments who lives in a community in which absolutely every part of the physical environment is ADAAG-compliant ... and you can't get out of your house.

Some people might see access to cannabis as a disability rights and still see it as something that's got to be prevented in the name of the "war on drugs." Unlike OxyContin, a pharmaceutical that can certainly be diverted to the illegal market, cannabis doesn't have a single large-scale distributor. George McMahon reports that the handful of people with Federal permission to use marijuana as a medicine have an authorized supplier, but private individuals are growing the marijuana used by people covered by the CUA.

And if private people are growing it, that means that private people have seeds. Seeds that can be used for illegal plants as well as legal ones. Seeds that can be used to produce more than the medicinal users need, so that the extra can be sold. In Prescription Pot , McMahon and co-author Christopher Largen make the reasonable claim that controlling illegal use is a law enforcement problem, not one that those seeking medical use should be expected to solve. But it is clear that the way most people get marijuana in the U. S. today make it a law enforcement problem that is noticeably different than most of the other law enforcement problems that arise in the "war on drugs."

Moreover, private people -- growers, buyers, users, supporters -- don't have the same kind of clout that the pharmaceutical companies -- the ones producing drugs like OxyContin -- do. This means in part that they are less able to affect public policy, but also in part that, as medical "non-experts," their claims are scrutinized much more closely by the average consumer of information than those of the medical "experts" pharmaceutical companies can deploy. That includes average disabled consumers of information.

All the same, do you believe the claims that Californian doctors and patients are making about the efficacy of marijuana in controlling some symptoms -- and the inadequacy of the pharmaceuticals currently on the market? Because if you do, then whether or not you think the nation's drug enforcement policy is important enough that the Supreme Court's decision in Raich is the correct one, it's hard not to sympathize -- as do Justices Stevens, Breyer, Ginsburg, Kennedy, and Souter -- with the people for whom a move against the medical cannabis infrastructure means a harder life.

So the next question is: how do we balance the interest of people in having the basics they need in order to enjoy the benefits of society with the interest of the society as a whole in controlling certain kinds of behavior?

Posted June 8, 2005.

Cal Montgomery writes frequently for Ragged Edge. Read her article 'This Precious Cause': Medical Marijuana and Disability Rights.

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