Washington Perhaps the greatest impediment in the quest for a constitutionally mandated right to privacy is the issue of drugs, and that issue is now on the front burner. Marijuana has become the primary test.
The debate over marijuana focuses not only on legalization but also on medical benefits. In this past election, the ballot in Alaska had a petition to legalize the "possession, cultivation, distribution or consumption" of marijuana. For many proponents of legalization, it is more a question of privacy than anything else. Al Anders, chairman of the Free Hemp in Alaska group, considers it "a states-rights issue. It's a right to privacy and the right to privacy is not being respected by the federal government."
At the end of November, the United States Supreme Court agreed to hear the case of U.S. vs. Oakland Cannabis Buyer's Cooperative. The case centers around the cooperative's desire to "provide seriously ill patients with safe access to necessary medicine so that these individuals do not have to resort to the streets." Under a law passed in the state of California in 1996, it is legal to possess and use marijuana for medicinal purposes when it is recommended by a doctor. Eight other states have similar laws on their books, including Alaska, Arizona, Hawaii, Maine, Oregon, Washington, Nevada and Colorado.
The United States brought suit against the Oakland group in 1998 citing violation of the federal Controlled Substances Act, which makes the production and distribution of marijuana illegal. Specifically, the government sought to ban the group from distributing the drug. Department of Justice lawyers argued that Congress determined that marijuana has "no currently accepted medical use" and that allowing the Oakland group to distribute the drug "threatens the government's ability to enforce the federal drug laws." They also claim that more than two dozen groups are currently distributing marijuana for medicinal purposes in Alaska, California, Hawaii, Oregon and Washington.
Judge Charles Breyer, brother of Supreme Court Justice Stephen Breyer, ruled in favor of the government in 1998. His decision was reversed, however, by the 9th U.S. Circuit Court of Appeals that said the government had not discredited the group's claim that marijuana was "the only effective treatment for a large group of seriously ill individuals."
The medical aspects to the case make it more palatable. But the reality is that it is about privacy, not medicine. Non-medical drug use is bad. So is alcohol and so is smoking. So are diets high in saturated fats.
People often do things that are bad for them, and it is the government's obligation to warn them of the dangers inherent in these self-destructive activities. But there is a huge gulf between warning and criminalizing, between filling rehab centers and filling jails.
The argument is made that drug use is more than a private matter. It impacts insurance rates, Medicaid and Medicare costs and, more important, rips at the soul of the nation. This is all true, and we should rail against it. But criminalizing drug use has costs too, and the first of these is personal liberty. Then there are the enormous costs associated with prosecution and incarceration, not to mention the overwhelming burden placed on law enforcement agencies to track down private users. Clearly, there are costs whichever way we go, but if going after and punishing drug users is such a good idea, then the same argument should hold for those other, more costly, harmful activities. Drinkers, smokers and fat people beware.