Court rules against dying woman in medical marijuana case
David KravetsMarch 15, 2007
SAN FRANCISCO (AP) - An Oakland woman whose doctor says marijuana is the only medicine keeping her alive is not immune from federal prosecution on drug charges, a federal appeals court ruled Wednesday.The ruling was the latest legal defeat for Angel Raich, a mother of two suffering from scoliosis, a brain tumor, chronic nausea and other ailments who sued the federal government pre-emptively to avoid being arrested for using the drug. On her doctor's advice, Raich eats or smokes marijuana every couple of hours to ease her pain and bolster a nonexistent appetite as conventional drugs did not work.The latest legal wrangling once again highlighted the conflict between the federal government, which declares marijuana an illegal controlled substance with no medical value, and the 11 states allowing medical marijuana for patients with a doctor's recommendation.The Supreme Court ruled against Raich two years ago, saying medical marijuana users and their suppliers could be prosecuted for breaching federal drug laws even if they lived in a state such as California where medical pot is legal.Because of that ruling, the issue before the 9th U.S. Circuit Court of Appeals was narrowed to the so-called right to life theory: that the gravely ill have a right to marijuana to keep them alive when legal drugs fail.Raich, 41, began sobbing when she was told of the decision and said she would continue using the drug."I'm sure not going to let them kill me," she said. "Oh my God."The three-judge appeals panel said that the United States has not yet reached the point where "the right to use medical marijuana is 'fundamental' and 'implicit in the concept of ordered liberty.'"However, the court left open the possibility that Raich, if she was arrested and prosecuted, might be able to argue that she possessed marijuana as a last resort to stay alive, in what is known as a "medical necessity defense."Raich was asking the court to block enforcement of the 1970 Controlled Substances Act, which criminalized marijuana, LSD, heroin and other drugs."Though a necessity defense may be available in the context of a criminal prosecution, it does not follow that a court should prospectively enjoin enforcement of a statute," Judge Harry Pregerson wrote in the unanimous ruling.When the case was argued before the appeals court a year ago, the government said it could not guarantee that Raich or other seriously ill patients using medical marijuana would not be arrested or prosecuted. Over the years, the government has raided dozens of medical marijuana dispensaries, mostly in California."I have to get myself busted," Raich said, "in order to try to save my life. You know, I'm dead man walking."In a partial dissent, Judge C. Arlen Beam said Raich had no legal standing to even bring a case because she was not arrested. Beam added that Raich "probably cannot establish that she has no legal alternative to violating the law."Leaders in the medical marijuana movement said they would continue fighting for the cause."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," said Rob Kampia, executive director of the Marijuana Policy Project.Wednesday's decision doesn't bode well for three California medical marijuana clubs whose case before the same appeals court claims, among other things, that they have a right to distribute marijuana based on a patient's "fundamental right" to use marijuana to alleviate their suffering.Raich's case is likely to reach the U.S. Supreme Court, but each time the high court has taken up the issue of medical marijuana it has ruled against allowing the sick and dying to use the drug to ease their symptoms and possibly prolong life.Voters in 1996 made California the first state to authorize patients to use marijuana with a doctor's recommendation. At least 10 other states followed suit.
The case is Raich v. Gonzales, 03-15481.