Court says U.S. can ban medical marijuana

March 13, 2007

Adam Tanner, Reuters

A California woman with an inoperable brain tumour may not use marijuana to ease her pain even though California voters have approved medical marijuana, a U.S. appeals court ruled on Wednesday.

In a much-watched test case on medical marijuana, the 9th U.S. Circuit Court of Appeals found there is no fundamental right to use marijuana for medical purposes. The ruling agreed with a 2005 U.S. Supreme Court decision.

The split three-judge opinion written by Judge Harry Pregerson expressed sympathy for some arguments by plaintiff Angel Raich, an Oakland resident with an inoperable brain tumour whose doctor testified she could die if she stopped smoking pot. But the ruling backed the 1970 federal Controlled Substances Act barring marijuana.

Raich, who suffers from a host of ailments as well as the brain tumour, said marijuana was keeping her alive by easing her pain and bolstering her appetite.

"The court has just sentenced me to death," Raich said in a statement. "My doctors agree that medical cannabis is essential to my very survival."

The court's decision said use of the drug for medical purposes was gaining support but federal law still banned it.

"We agree with Raich that medical and conventional wisdom that recognises the use of marijuana for medical purposes is gaining traction in the law as well," he wrote. "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." 


The ruling acknowledged the law could change if legislators reconsider the issue.

"Although that day has not yet dawned, considering that during the last 10 years 11 states have legalised the use of medical marijuana, that day may be upon on us sooner than expected," Pregerson wrote.

Voters in California, the nation's most populous state, approved medical marijuana in 1996.


In a ruling in another high-profile case, a Northern California U.S. District judge found that prosecutors had acted vindictively in adding four counts of tax evasion and one count of money laundering against "ganja guru" Ed Rosenthal.

The author of books including "Marijuana Growing Tips", Rosenthal was sentenced in 2003 to a single day in prison for violating federal law by growing the plant.

The 9th Circuit overturned that decision last year and a new trial ordered. The prosecutor renewed the case with the original marijuana charge and new counts on tax evasion and money laundering.

"The reasonable observer will interpret the government's conduct as demonstrating that if defendants successfully appeal, the government will ensure that they face more severe charges and more prison time the next time around," Judge Charles Breyer wrote.

"The government's commencement of its investigation into the tax and money laundering charges shortly after the first trial is consistent with the evidence suggesting that the new charges were brought in retaliation for Rosenthal's post-verdict complaints about the fairness of the trial."

However, Breyer denied Rosenthal's efforts to dismiss the original marijuana charges.

Rosenthal had argued he believed cultivating marijuana for medical purposes was allowed under state law. He sees his case as part of a crusade to eliminate U.S. laws against marijuana.

(Additional reporting by Jim Christie)

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