9th Circuit Rejects Raich's Medical Pot Defenses 

9th Circuit Rejects Raich's Medical Pot Defenses 
Posted by CN Staff on March 14, 2007 at 12:55:17 PT
By Josh Richman, Staff Writer
Source: Tri-Valley Herald
California -- Medical necessity doesn't shield medical-marijuana users from federal prosecution, a clearly sympathetic federal appeals court ruled today in an Oakland woman's case that earlier went all the way to the U.S. Supreme Court."Nothing in the common law or our cases suggests that the existence of a necessity defense empowers this court to enjoin the enforcement of the Controlled Substances Act as to one defendant," 9th U.S. Circuit Court of Appeals Judge Harry Pregerson wrote.
The court also mulled whether the Constitution's guarantee of due process of law embraces a right to make a life-shaping decision, on a doctor's advice, to use medical marijuana to avoid intolerable pain and preserve life when all other prescribed medications have failed.Although the court agreed medical marijuana is slowly gaining legal acceptance -- 11 states so far have passed laws allowing its use -- it found "that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is `fundamental' and `implicit in the concept of ordered liberty."'"For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental," Pregerson wrote."I'm a dead woman walking," plaintiff Angel Raich of Oakland responded Wednesday morning. "The 9th Circuit is saying the sickest of the sick marijuana patients have no constitutional right to life. ... Now, if the DEA (Drug Enforcement Administration) knocked at my door, they could take my life and get away with it."She suffers from scoliosis, a brain tumor, chronic nausea and other ailments.Robert Raich, the plaintiff's attorney and ex-husband, said they might ask the U.S. Supreme Court to review this ruling, and might ask U.S. District Judge Martin Jenkins of San Francisco "to review issues that the 9th Circuit left unresolved."Angel Raich and Diane Monson of Oroville plus two unnamed providers sued the government in October 2002 to prevent any interference with their medical marijuana use, but this case's seeds actually were sown in the Supreme Court's May 2001 decision on the Oakland Cannabis Buyers Cooperative's case.The court in that earlier case had ruled there's no collective medical necessity exception to the federal ban, which defines marijuana as having no valid medical use. But it didn't rule on constitutional questions underlying the medical marijuana debate, so Raich, Monson and their lawyers tailor-made a case raising exactly those issues.A federal judge in San Francisco rejected their arguments in March 2003, but a 9th Circuit appeal panel reversed that ruling nine months later. That panel believed the plaintiffs could prevail at trial on their claim that the Constitution's Commerce Clause lets Congress regulate only interstate commerce, and that Californians' medical marijuana use neither crosses state lines nor involves money changing hands.The U.S. Supreme Court heard the case in November 2004 and in June 2005 ruled 6-3 to uphold the federal ban, finding that even marijuana grown in back yards for personal medical use can affect or contribute to the illegal interstate market for marijuana and so is within Congress' constitutional reach.But the 9th Circuit panel and the Supreme Court dealt only with the Commerce Clause argument, not the other constitutional issues. With the case remanded back to the 9th Circuit, Raich's attorneys pursued the remaining arguments; Monson dropped out of the case in late 2005.Arguing almost a year ago in Pasadena, Raich's lawyers claimed the common-law doctrine of necessity -- the idea that it's OK to break the law when forces beyond one's control compel it and there's no reasonable, legal alternative -- bars the government from applying the Controlled Substances Act to ban medically necessary activities.They'd also argued that keeping her from using marijuana as medicine unduly burdens her fundamental rights to life and freedom from pain, as protected by the Fifth Amendment's Due Process Clause and the Ninth Amendment.The government argued there's no constitutionally protected fundamental right to obtain and use marijuana in defiance of the federal ban on the drug, and that the Supreme Court's decision in the Oakland Cannabis Buyers Cooperative case already had ruled out a medical-necessity argument.Raich said Wednesday she needs to figure out what to do next. "I'm not the type of person to give up; the question is to what extent I'll be able to continue doing what I've been doing. ... I just can't see myself stopping the fight."Continuing the fight, she said, might mean spending even more time than she already has lobbying Congress to change federal law.Rob Kampia, executive director of the Marijuana Policy Project in Washington, D.C., called the ruling "shocking, but it's not the end of the struggle."Last June, legislation to end the federal government's war on medical marijuana in the 11 states where medical marijuana is legal received a record number of votes in the U.S. House of Representatives, and support has grown this year," he said. "This is literally a matter of life and death for Angel and thousands of other patients, and we will keep fighting on both the legal and political fronts until every patient is safe."Last June's House vote -- on a budget amendment introduced for the fourth consecutive year by Rep. Maurice Hinchey, D-N.Y., and Rep. Dana Rohrabacher, R-Huntington Beach, to bar use of federal funds to arrest and prosecute patients and providers in the 11 states -- was 259-163 against the amendment. The measure received 161 votes in 2005; 148 in 2004 and 152 in 2003; it would need 218 to pass.Source: Tri-Valley Herald (Pleasanton, CA)Author: Josh Richman, Staff WriterPublished: March 14, 2007Copyright: 2007 ANG NewspapersContact: herlet angnewspapers.comWebsite: Article & Web Site:Marijuana Policy Project Rules Against Dying Woman in MMJ Case Medical Marijuana Archives 
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Comment #2 posted by FoM on March 14, 2007 at 20:46:59 PT
Tearful Raich Vows To Fight for Medical Pot
This is a slight variation on the above article so I thought I should post it as a link.
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Comment #1 posted by mayan on March 14, 2007 at 17:35:13 PT
"The 9th Circuit is saying the sickest of the sick marijuana patients have no constitutional right to life. ... Now, if the DEA (Drug Enforcement Administration) knocked at my door, they could take my life and get away with it."Need more be said?
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