It is not often that this column finds itself in agreement with Supreme Court Chief Justice William Rehnquist and Associate Justices Clarence Thomas and Sandra Day O'Connor, three of the High Court's more conservative members. But Rehnquist, Thomas and O'Connor were right to dissent from the Court's wrongheaded decision to permit the federal government to prosecute sick people who use marijuana as a painkiller--even in states where voters and legislators have determined that such use is lawful.
The three dissenters are to be applauded for their refusal to be buffaloed by the drug warriors who peddle the fantasy that marijuana should continue to be viewed as a dangerous drug that is unacceptable for any use.
O'Connor's dissent was particularly significant. While she indicated that she would not have voted in favor of the state initiatives or legislative bills that have legalized medical marijuana in Alaska, Colorado, California, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington, the Justice explained that it was wrong for the federal government to seek to undermine "an express choice by some states, concerned for the lives and liberties of their people, to regulate medical marijuana differently."
O'Connor's dissent is important because it makes clear where distinctions ought to be drawn. Of course, the federal government has a right--indeed, a responsibility--to intervene when the lives and liberties of Americans are threatened by the states, as has been the case when federal authorities have acted to protect the rights of racial minorities, women and people with disabilities. But to intervene with the express intent of denying Americans with serious diseases a generally well-regarded treatment option represents the worst sort of meddling by the federal government.
The Supreme Court's 6-3 ruling suggests that there are few judicial options left for supporters of medical marijuana. But John Walters, the Bush Administration's director of national drug control policy, was wrong when he claimed on Monday that "today's decision marks the end of medical marijuana as a political issue."
The High Court's majority made it clear that federal legislative avenues remain open. Congress has the power to remove all legal barriers to the distribution and use of medical marijuana. While such a bold step may be unlikely in the short term, Congress also has the power to create exemptions for states where voters and legislators have decided to, in the words of California Attorney General Bill Lockyer, respect "the rights of patients to have access to the medicine they need to survive and lead healthier lives."
Noelle Davis, executive director of Austin-based Texans for Medical Marijuana, is right when she says, "This gives the opportunity to Congress to step up and do something."
Will it happen? Representative Ron Paul, R-Texas, a physician who has co-sponsored legislation to allow states to decide without federal involvement whether people can use marijuana with a doctor's approval, says, "I think support is strong, but (members of Congress) are still frightened a little bit by the politics of it. If you had a secret vote in Congress, I'll bet 80 percent would vote for it."
That figure is roughly parallel to the sentiments expressed by Americans in polling with regard to medical marijauna. What's needed now is for citizens to let their members of Congress know that the federal government has no business taking people's medicine away from them.
They can do so by urging support for the States' Rights to Medical Marijuana Act (HR 2087). Sponsored by Representative Barney Frank, D-Massachusetts, it has thirty-six co-sponsors, ranging from conservative Representative Dana Rohrabacher, R-California, to progressives such as Representatives Bernie Sanders, I-Vermont; Tammy Baldwin, D-Wisconsin, and John Conyers, of Michigan, the ranking Democrat on the House Judiciary Committee.
The legislation gets to the heart of the matter addressed by the court, declaring that:
"No provision of the Controlled Substances Act shall prohibit or otherwise restrict--
(A) the prescription or recommendation of marijuana by a physician for medical use,
(B) an individual from obtaining and using marijuana from a prescription or recommendation of marijuana by a physician for medical use by such individual, or
(C) a pharmacy from obtaining and holding marijuana for the prescription or recommendation of marijuana by a physician for medical use under applicable State law
in a State in which marijuana may be prescribed or recommended by a physician for medical use under applicable State law."