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 Angel Raich got another dose of federal medicine March 14, when the Ninth Circuit Court of Appeals dismissed her lawsuit seeking protection from federal arrest and prosecution for using cannabis consistent with California law. After hearing the decision, she broke down in tears and said she is a “dead woman walking.”
“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,” wrote Judge Harry Pregerson.
The ruling led to a national outpouring of sympathy, compassion and support for Raich, one of the best known medical marijuana patients in the USA. She suffers from scoliosis, fibromyalgia, wasting syndrome and an inoperable brain tumor, among other conditions.
News media across the country called for federal policy to change. That staid conservative publication, The Wall Street Journal, published a commentary stating that “the Ninth Circuit turned away another constitutional challenge to the federal ban on using cannabis for medical purposes. Its decision revealed a glaring weakness in how the Supreme Court protects liberty under the Constitution.”
With its new ruling, the Appeals Court held that neither Common Law nor due process allow a US American citizen to make their own personal, life or death decisions under the guidance of a physician without the constant threat of federal harassment and prosecution. The judge did dangle forth another carrot on a stick, holding that if arrested by federal drug agents Raich might be able to argue a medical necessity defense.
In June 2005 the US Supreme Court had rejected Raich’s first set of arguments that the Commerce Clause and Ninth and Tenth Amendments preclude the DEA from arresting California-qualified patients for cannabis when there is no interstate commerce involved, in part because States have authority to pass criminal laws, and a voter initiative, Prop 215, legalized medical marijuana as a matter of States’ Rights.
The “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”
The Court ruled that States cannot stop federal drug agencies from enforcing federal law within their jurisdictions; however it dangled forth two possibilities: medical necessity and “due process of law,” meaning the right to adjudicate any issue. Raich and her attorney and ex-husband Robert Raich went forward with an appeal based on due process, which could have helped a larger group of patients.
They had hoped to stem the arrests and prosecutions. The highly restrictive “necessity” argument requires patients to first be arrested and prosecuted after having tried every available legal option, no matter how toxic or undesirable, before they can use cannabis, one of the oldest and safest medicines known to humanity. So far, the courts have not ruled out that particular defense.
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