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Tuesday, July 29, 1997 - Page updated at 12:00 AM

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Liberty Is Biggest Loser In Nation's War On Drugs

Times Editorial Columnist

GO ahead, all you tough-on-crime czars running loose across the republic - give yourselves a hearty totalitarian slap on the back. Your $17 billion-a-year war on drugs has claimed another casualty. No, it's not a Colombian drug lord or inner-city crack dealer, but a terminally ill Tacoma man seeking the freedom to smoke marijuana for pain relief without fear of police-state retribution.

In an 8-1 decision last week, the Washington state Supreme Court rejected bone cancer patient Ralph Seeley's claim to a constitutionally protected interest in having his doctor - Ernest Conrad, an orthopedic physician - prescribe marijuana.

Dr. Conrad, also director of musculoskeletal oncology at the University of Washington School of Medicine, testified, "If I could prescribe marijuana for him, I would." Washington law allows doctors to prescribe harder illicit drugs including cocaine, PCP, opium and morphine. But the court upheld the state's law banning the use or prescription of leaf marijuana for any purpose.

While the court majority cited numerous cases to justify its view that Seeley had no constitutional right to choose his preferred medical treatment, the justices ignored two key U.S. Supreme Court cases - Roe v. Wade and Planned Parenthood v. Casey - that guarantee individuals the constitutionally protected right to a private medical decision, namely abortion.

Like the high court's recent ruling rejecting a right to physician-assisted suicide, the state Supreme Court's ruling rejecting Seeley's right to physician-prescribed marijuana perpetuates a disturbing legal incongruity: How can terminating a fetus be more fundamental to personal dignity and autonomy than terminating one's own pain?

The court majority said Seeley failed to cite proper "authority supporting his assertion that the right to access an unapproved, controlled substance as treatment for a medical condition is an `important right.' "

It's hard to imagine what legitimate authority the court would have accepted barring divine intervention. Seeley's experience - left vomiting uncontrollably in his hospital bed after chemotherapy, often covered in his own excrement, and unable to tolerate narcotic painkillers - was not deemed "authoritative" enough to prove the importance of one's rights to individual autonomy and physician treatment.

The court majority declined to interfere with the Legislature's absolute prohibition on medical marijuana, citing a larger governmental interest in maintaining "an interlocking trellis of federal and state law to enable government at all levels to control more effectively the drug abuse problem." Better to preserve this "national scheme" of uniformly rigid drug laws, the court found, than to grant a dying man his non-important claim to freedom from excruciating pain. A decision favoring Seeley, after all, might muss up that neat legal trellis constructed with billions of tax dollars - and, heavens, we wouldn't want that.

The court's unwillingness to intervene in this matter is a cruel abdication given its long history of overturning laws deemed unduly oppressive to individuals. As Justice Richard Sanders, the lone dissenter on the bench, noted: "Our court has previously invalidated state and local legislative acts on precisely this ground . . . I doubt many individuals would require Mr. Seeley to suffer extreme nausea in lieu of the relief he could obtain from a marijuana cigarette. But it seems the government is endowed with neither the compassion nor mercy possessed by the ordinary citizen."

Nor common sense. The nation's war on drugs - far from providing the effective controls credited it by the majority in Seeley v. State of Washington - has been a dismal, costly, inefficient failure. Over the past decade, spending on the anti-drug crusade has risen from $5 billion to $17 billion a year. Drug traffickers and dealers are thriving, raking in an estimated $150 billion a year; meanwhile, nearly half of the 1.6 million Americans in jail today are there for nonviolent drug offenses.

They are folks like Martin Martinez, a Seattle crash victim with debilitating nerve pain who was arrested last year for growing medicinal marijuana, and Norm Major, a Eugene, Ore., cancer patient who started taking marijuana on the advice of several doctors and was arrested in May for growing the plant in his basement.

The state Supreme Court passed an opportunity to halt the damage, stem the waste, and extend fundamental protections to the drug war's unintended victims. But the voters of Washington may get a chance in November to declare war on the failed war on drugs if an initiative sponsored by Tacoma doctor Rob Killian, which would allow doctors to recommend marijuana and other illegal drugs to seriously ill patients, qualifies for the ballot this summer.

Until then, drug war generals and foot soldiers are countering attacks with a wrenching plea: What kind of message are we sending our children? Funny. That's exactly my sentiment as I think of Ralph Seeley and the inhumane sacrifice of pain-free life and personal liberty he must now make for the Nanny State's more important pursuit of the Greater Good.

Michelle Malkin's column appears Tuesday on editorial pages of The Times. Her e-mail address is: malkin1@ix.netcom.com.

Copyright (c) 1997 Seattle Times Company, All Rights Reserved.

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