Raich loses medical marijuana appeal
March 13, 2007
Julie Cheever, Bay City News ServiceA seriously ill Oakland woman who says she needs medical marijuana to "avoid intolerable pain and death" lost a bid to a federal appeals court today for the right to use the substance.
The 9th U.S. Circuit Court of Appeals ruled in San Francisco that Angel Raich, 41, does not have a fundamental liberty right to use marijuana that she believes necessary to preserve her life.
The court said legal recognition of medical marijuana "has not yet reached the point where a conclusion can be drawn that the right to use marijuana is fundamental and implicit in the concept of ordered liberty."
Two judges on a three-judge panel said "that day may be upon us sooner than expected" as medical marijuana gains increasing recognition.
But they said that for now, "Federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering."
Raich suffers from at least 10 serious medical conditions, including an inoperable brain tumor, a seizure disorder, life-threatening weight loss and several chronic pain disorders, the court said.
She and her doctor maintain that she needs marijuana to combat the illnesses and pain and that other alternatives are either ineffective or have intolerable side effects.
Raich has never been federally prosecuted for using marijuana, but had filed a lawsuit seeking an injunction protecting her from possible prosecution.
Her husband and attorney, Robert Raich, said she was "devastated" by the decision.
"We have the court saying she doesn't have the right to preserve her own life," the attorney said.
Robert Raich said Angel Raich is considering several options, including a possible appeal to an expanded panel of the circuit court or further proceedings before a federal trial judge in San Francisco.
The attorney said further proceedings would concern Raich's claim that the wording of the federal Controlled Substances Act does not apply to her. The appeals court did not address that claim in today's ruling.
The decision was made in Raich's second appeal for an injunction protecting her from federal prosecution.
In an earlier part of the case, the U.S. Supreme Court in 2005 rejected Raich's claim that her locally grown medical marijuana was not part of interstate commerce and thus was not subject to federal laws criminalizing marijuana.
The high court said Congress's power to regulate interstate commerce includes the authority to ban marijuana grown and used within a state.
The case was then returned to the appeals court for consideration of Raich's liberty claim.
Although California's Compassionate Use Act protects seriously ill patients from state prosecution for using medical marijuana on a doctor's recommendation, federal drug laws make no exception for the state law.