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Viewpoint: No states' rights on medipot for Bush, Ashcroft

December 11, 2001

When he ran for president last year, George W. Bush told one campaign audience after another the federal government is too big and too active. He even suggested once that states — not the feds — should decide whether to legalize marijuana.

Bush's attorney general, John Ashcroft, was an even more adamant advocate of states' rights during his years in the Senate, advocating among other things for states to make their own voting rights laws.

This talk seemed academic at the time. But no longer, as medical marijuana patients around California prepare for an expected spate of raids in addition to two conducted by the U.S. Drug Enforcement Administration in October.

States' rights under Bush appear to go no farther than their right to do whatever the president and Ashcroft like, but little more. It's an attitude that runs counter to a longtime legal tradition allowing states to grant their citizens more rights than the federal Constitution, but never less.


It's also a typical attitude for attorneys general everywhere. When Republican Dan Lungren was California attorney general, he was lambasted for refusing to enforce laws against housing discrimination. Conservatives knock current Democratic state Attorney General Bill Lockyer for allegedly failing to enforce some anti-affirmative action provisions of the 1996 Proposition 209.

Now Ashcroft is sending his DEA agents after AIDS patients on pot and directs other DEA officers to go after doctors in assisted suicide cases in Oregon.

Both actions run counter to the clear wishes of voters. Yes, Californians three years ago rejected an initiative to allow assisted suicide. But they passed Proposition 215 by a wide margin in 1996, trying to legalize medical use of marijuana whenever doctors recommend it. And Oregon voters in 1998 opted to allow doctors to help terminally ill patients end their lives, if that's what the patients want.

So the will of the voters doesn't mean much to the Bush administration, in spite of its supposed stance on states' rights. For Ashcroft, states' rights apparently go no farther than allowing racial discrimination in some places.

So his agents flouted California law by uprooting and confiscating 400 marijuana plants from the Los Angeles Cannabis Resource Center in West Hollywood, also hauling off computers containing names, addresses and medical histories of the center's 960 member patients.

Earlier, other agents took 5,000 personal medical records of medipot-using patients from the files of Dr. Marion Fry's California Medical Research Center in the El Dorado County town of Cool.

The rationale for both raids was a June ruling by the U.S. Supreme Court against the Oakland Cannabis Buyers Club, which claimed that a combination of medical necessity and Proposition 215 justified its continued operation despite a federal court injunction ordering it to close.

The implication of that ruling is that federal decisions proclaiming marijuana a dangerous substance overrule any state action to legalize pot for any reason. Besides California, Arizona, Oregon, Washington, Maine, Colorado, Nevada and the District of Columbia all have tried to legalize medical use of the weed.

Doesn't matter, say Ashcroft and Bush.

"I think they care about states' rights when it serves their political ends," Erwin Chemerinsky, a University of Southern California law professor, told a reporter. "But I think that's been true throughout American history."

Probably so.

And politicians' attitudes about states' rights don't often matter much to ordinary citizens. But thousands of medipot patients now fear they might be prosecuted because their medical records have been taken. Thousands more with ailments from AIDS to migraine headaches know their records might be confiscated in the next raid, even if they're in full compliance with Proposition 215 and any local medipot guidelines.

Even San Francisco District Attorney Terence Hallinan's declaration that his city would be a sanctuary for medical pot users is likely meaningless in the face of Ashcroft's policy.

"They know they're breaking the federal law," Richard Meyer, spokesman for the DEA's San Francisco office, has said. "Our job is to enforce the federal drug laws."

The upshot is that the days of easy access to medical marijuana may soon be over for most Californians who depend on it. That will be apparently be true as long as the Bush administration stays in office, no matter what voters may think or do.

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