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States rights go to pot over medical marijuana

On Christmas Eve three years ago, Tre learned he had a brain tumor the size of an orange. He needed surgeries, chemotherapy, and $690 a month for medicine to control his nausea and pain. "There was no way I could come up with that money," he said.

On the recommendation of a friend, Tre, who spoke to the Current on the condition that his last name be ommitted to protect his privacy, tried marijuana to help curtail the side effects of his illness.

"I'm constantly in pain, and it's not like I can just take an aspirin," Tre, a San Antonio resident, said. "Marijuana helps me to take a step to the side and relax, watch the game, feel better."

Regardless, marijuana is illegal in Texas. As San Antoino Police Department Officer Joe H. Rios put it, "We would arrest you no matter what."

Ten states - Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Washington, and Vermont - have laws that effectively allow medicinal marijuana use. Yet, in a 6 to 3 ruling last week, the Supreme Court cemented the federal government's right to arrest those using marijuana for medical reasons even if they are in accordance with their state's law.

In effect, a terminally ill patient in California growing and using her own marijuana could be abiding state law, and federal agents could still kick in her door, destroy her marijuana plants, and arrest her, which is exactly what prompted the case Gonzalez v. Raich. Angel McClary Raich, who suffers from an inoperable brain tumor, life-threatening wasting syndrome, and other disorders, led the case, which reached the Supreme Court. She originally sued the Drug Enforcement Agency and Attorney General John Ashcroft in 2002.

At the core of the case was whether the federal government, in its application of the medicinal marijuana law, was infringing on states' rights. Many critics such as Justice Sandra Day O'Conner, who wrote the dissenting opinion, say that the interpretation of the Constitution's Commerce Clause, which allows the federal government to pass laws regulating state interstate commerce, has been too broadly applied to this case.

"This case exemplifies the role of States as laboratories," wrote O'Conner in her opinion. "The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens."

However, the majority of the Supreme Court agreed with Justice John Paul Stevens, who wrote that "We need not determine whether respondents' ken in the aggregate, substantially affect interstate commerce in fact, but only whether a "rational basis" exists for so concluding...we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the `Controlled Substance Act`."

Raich has told reporters that she will not stop using marijuana despite the Court's decision.

"Angel will suffer imminent harm without access to cannabis," Frank Lucido, Raich's primary care physician, said on her website, "After a certain number of medications have been tried, it would be malpractice to subject the patient to further unnecessary harm."

However, the American Medical Association, which stated that marijuana has no medical use, and Congress do not concur with Lucido, nor do they agree with most Americans: A 2002 poll conducted by CNN and Time magazine suggested that 80 percent of Americans surveyed think adults should be able to use marijuana as medicine.

Still, under Title 21 of the Controlled Substance Act, the DEA can investigate and arrest any marijuana user in any state.

"It has never been the position of the DEA to target the sick and dying but rather those individuals involved in the cultivation and trafficking of illegal drugs," said Raymond A. D'Alessio, public information officer in the DEA Houston Field Division. "That being said, there is no medical evidence that smoking marijuana helps patients. The scientific and medical communities have determined that smoked marijuana is a health danger, not a cure."

Chris Cain says marijuana allowed him to "get his life back." Cain, a 36-year-old resident of Kountz, Texas, has used medicinal marijuana for 11 years. After a driving accident left him a quadriplegic at age 16, Cain tried prescription medications to control his spasms for 10 years but says the drugs caused unwelcome side effects such as rapid heart beat or nausea. "I'm making an intelligent decision;

I have to do it to survive," Cain said.

"I'm able to run a successful business. I'm able to lead a normal life."

Two years ago, Cain saw seven police cars and a helicopter converge on and raid his home after county police learned of his daily marijuana use. He is currently facing misdemeanor possession charges.

Many Texans are fighting to ensure arrests like Cain's don't happen again. Texans for Medical Marijuana, a grassroots group headquartered in Austin, lobbied for HB 658, the affirmative-defense marijuana bill, but it died in the House this session, lacking one vote. The group is currently backing the Hinchey-Rohrabacher medical-marijuana amendment, on which the U.S. House of Representatives will vote this month. The amendment would prohibit the U.S. Department of Justice, which includes the DEA, from spending any money to raid or arrest patients using medical marijuana in the states that legally allow it.

Tre, a volunteer for Texans for Medical Marijuana, has spoken to congressmen in Austin, attended protests, and distributed petitions for support of the amendment around San Antonio. Tre can volunteer despite having had 90 percent of his left temporal lobe removed and both hips replaced. He also has experienced sporadic grand mal seizures, which include loss of consciousness, falling down, and rythmic convulsions.

Said Noelle Davis, executive director of Texans for Medical Marijuana, "Just because the Supreme Court ruled that the federal government may go ahead with these raids, it doesn't mean they should."

By Heather Holmes

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