Apropos of Rhode Island recently passing legislation to legalize medical marijuana, lawyer and novelist Mitchell Freedman has an interesting blog post regarding the recent ruling of the Supreme Court upholding a physician-assisted suicide in Oregon and its possible implications in the medical marijuana battle.
Freedman notes that this ruling may open the door a crack further for a challenge to the laws outlawing all marijuana use:
As I noted to friends at the time of the Raich decision, the time may be right for either a strong lobbying effort to remove marijuana from Schedule I or attempt another run at the US Supreme Court with a full factually based assault on what petitioners could argue is the unreasonableness and arbitrariness of Congress placing marijuana in Schedule I. Perhaps after today’s decision upholding Oregon’s suicide assistance law, the Supreme Court may be more willing to hear such an argument.
Freedman also parses out the difference in Justice Thomas’s position in this case, versus the Thomas position on the most recent challenge to medical marijuana, in which Thomas favored the individual’s right to privacy. I recall The New Yorker referring to Thomas on this decision as “Justice Cheech” of the US Supreme Court. All jokes aside, Thomas obviously has more substantial legal reasons for ruling with the more “liberal” judges on this issue. Freedman offers this:
Underneath these decisions is the fight over when federal law trumps state law. Justice Clarence Thomas dissented in Raich because he said the Commerce Clause of the US Constitution does not allow Congress to pass laws that would stop individuals from growing marijuana in their private homes or back yards for private, non-commercial use. Today, just as the majority of justices who overturned the California law switched gears to uphold the Oregon law, Justice Thomas switched sides, too: In Raich, he would have upheld the California law. Today, however, his position was to overturn the Oregon law.
Neither set of Justices are as inconsistent, however, as they may seem. The key is to understand what they view as the overriding question. For the majority, it was whether the drugs involved are in Schedule I or II of the CSA. For Justice Thomas, it is a question of whether there is sufficient evidence of “interstate” commerce for the Congress to regulate the drugs and conduct in question.
Freedman goes on to discuss why physician assisted suicide may be dangerous in a country that does not guarantee health insurance for everyone, particularly the elderly. I recommend reading the full post here.
Kmareka.com 
I had heard the decision about assisted suicide having forgotten about Raich. My first thought was that yesterday’s ruling made medical marijuana more likely, as the majority talked about the states’ rights to regulate the practice of medicine. The med mar law seemed to fall under this category.
However, it was decided under the Interstate Commerce clause, as marijunana is a salable commodity. I would wonder if it would be possible to make another run at the Supreme Court arguing med mar under yesterday’s ruling, as an issue of medical practice. However, not being a lawyer, I may be missing some of the fine points.
I guess this puts me among those who see the “inconsistency” that Freedman says isn’t there, although I’m not sure if “inconsistency” is exactly the right word. I just can’t quite get my mind around why it’s OK for a dr to write a prescription for something lethal, but not for med mar. Could a pharmaceutical company package and sell the smokable version to be sold under prescription? Would that get around the problem? Plus, giving a pharma company another way to make $$$ is, IMHO, the quickest way to get med mar legalized.