States Rights Take a Hit

Supreme Court asserts federal dope dominance, but Idaho's neighbors say patients aren't at any greater risk


When the Supreme Court ruled 6-3 on Monday, June 6, that federal authorities can ignore state laws condoning medical marijuana and prosecute patients who use marijuana under state programs, Montana's new medical marijuana registry wasn't affected on its face. But the decision does reinforce the disconnect between federal and state authorities, and it props the door open for federal intervention in states like Montana that have sanctioned medicinal marijuana.

"There won't be any state prosecutions for medical marijuana use," Montana Attorney General Mike McGrath said Monday in response to the ruling. "We still have a valid law in Montana and a person can get a prescription from their doctor, get on the registry and use marijuana for medical purposes under state law."

The court's opinion, written by Justice John Paul Stevens, does mean that medical marijuana users in the 10 states that protect them must continue to fear federal prosecution. But since the bulk of marijuana prosecutions are pursued by state and local law enforcement-a Drug Policy Alliance survey found fewer than 20 federal prosecutions of medical marijuana users or growers since 1996, the New York Times reported Tuesday-the risk may prove slight.

And though federal agents now have a fresh license to prosecute sick and dying patients who find relief in the leaf, American citizens increasingly support citizens' right to use marijuana as medicine. In November, 62 percent of Montanans approved a medical marijuana initiative, making Montana the 10th state in the last decade to support the notion, following California, Oregon, Alaska, Colorado, Hawaii, Maine, Nevada, Vermont and Washington. Of the 10, the Associated Press reported Monday that only Oregon responded to the ruling with trepidation about the standing of its law: Oregon officials stopped issuing medical marijuana cards, saying the ruling needed to be reviewed before the program could continue. The other states are all standing firm, most reiterating that the federal government never condoned state medical marijuana programs in the first place.

President Bush's Drug Czar, John Walters, struck an aggressive pose in response to the ruling, saying in a statement, "Today's decision marks the end of medical marijuana as a political issue," and asserting that the court's decision establishes "so-called medical marijuana" isn't a valid form of medicine and that, "We have a responsibility as a civilized society to ensure that the medicine Americans receive from their doctors is effective, safe and free from the pro-drug politics that are being promoted in America under the guise of medicine."

Though Walters' comments strove for authority, they gloss over the fact that the court's opinion steered clear of marijuana's medicinal properties and merely addressed the government's right to regulate interstate commerce through the federal Controlled Substances Act. Stevens specifically identified Congress, not the courts, as the forum in which to change federal marijuana laws, and predicted that supporters of medical marijuana "may one day be heard in the halls of Congress."

Like McGrath, John Masterson, executive director of Montana NORML (the National Organization for the Reform of Marijuana Laws), stresses that the ruling does not affect Montanans' ability to legally use medical marijuana under state rules. "Patients had much to gain and little to lose with this decision," he says. "Just as before, patients are protected by state law."

Roy Kemp, the licensing bureau chief of the Montana Department of Public Health and Human Services, which administers the state's medical marijuana registry, says the confidential program has been proceeding smoothly: 119 patients in 25 counties have signed on since the registry was created at the end of 2004. To be recognized on the registry, a prospective patient must submit a doctor's recommendation that recognizes the patient's debilitating medical condition and judges the benefits of medical marijuana to outweigh potential health risks. Qualifying patients can grow their own marijuana or designate a caregiver to grow or obtain marijuana for them, and a patient or caregiver is allowed to possess six plants or up to one ounce of marijuana at a time. Kemp says 82 Montana physicians and 42 caregivers have signed on to assist qualifying patients, and as part of the approval process his office performs checks to ensure participating doctors are licensed by the state, and that appointed caregivers have never been convicted of felony drug offenses. Application must be accompanied by a $200 fee and renewed annually.

Though state officials and medical marijuana advocates stress that Montana patients aren't at any greater risk than in the past, Missoula's Robin Prosser was dismayed by Monday's ruling. Prosser, a registered user who suffers from nausea and pain caused by an immunosuppressive disorder, smoked a joint on the Higgins Avenue bridge Monday as a personal protest, because "I think it's a slap in the face of all the Montana voters...I'm beyond livid, somebody needs to wake everybody up and I don't know what it will take." Although she carried her registered user card and no state or local authorities could have legally stopped her, she worried about federal agents and said she's scared of losing her disability payments and housing subsidies due to federal prosecution. She says people are afraid to help her obtain or grow marijuana because of the federal threat, and that she had purchased growing equipment in anticipation of a decision favorable to states' rights, but now she isn't sure what she'll do.

But in the long view, the ruling dealt a more serious blow to states' rights than to medical marijuana proponents. The high court's decision signals an apparent retreat from recent rulings that broadened states' rights-federal laws governing gun possession near schools and violence against women both were recently shot down on the grounds that local authority should hold sway. In her dissenting opinion, Justice Sandra Day O'Connor held that the federal government, in trying to regulate medical marijuana, overreaches its power: "The states' core police powers have always included authority to define criminal law and to protect the health, safety and welfare of their citizens," she wrote.

According to the court's majority, that's no longer the case. Montana continues to disagree.

This story originally appeared in the Missoula Independent, Missoula's alternative newsweekly.