A Right to Life-Saving Marijuana? A Federal Court Says No

March 13, 2007

Patrick J. Lyons, New York Times

Another legal door was slammed today in the ever-contentious question of medical marijuana, when a federal appeals court ruled once again that Angel Raich of Oakland, Calif., could be prosecuted for smoking cannabis even though her doctor says it is the only drug keeping her alive.

 

Ms. Raich has a host of health problems, including a brain tumor and severe scoliosis, that leave her in more or less constant pain and nausea, with nothing resembling an appetite. She and her doctor say that conventional medicines fail to do much for her, but that a joint every few hours brings enough relief from these debilitating symptoms to let her go on, to get her food down and to keep it down.

California state law has allowed marijuana to be prescribed and used in cases like hers since 1996, and a number of other states have followed suit. But federal law does not.

The feds want to reserve the right to prosecute Ms. Raich (see the note below), and her case has already been to the Supreme Court once, on the question of whether the state law protects her from the federal one. The high court said no in 2005, and sent the case back to the appeals court to hear her second claim — that no matter what the statute books say, she has a pre-eminent right to keep herself alive by using the drug her doctor says her life depends on.

The appeals court, the Ninth Circuit, didn’t buy it, with a three-judge panel ruling today that Ms. Raich can be arrested and prosecuted regardless of whether she needs the marijuana to survive. The case seems likely to find its way to the Supreme Court again.

This isn’t the place to rehash (sorry) the arguments about whether marijuana actually is medically useful, or whether, for either the patient or society, allowing medical use does more harm than good. (You can get a fast survey of those issues in places like this.)

Rather, the core of the case now rests on the question of discretion. Hardly any law on the books is universally enforced; society gives the police and prosecutors fairly wide discretion to choose which violations to pursue and which to ignore in the greater interest of society. Doctors, too, are given substantial discretion to break rules when necessary to save life and limb. And even the ordinary citizen gets some discretion over the statute books: You are allowed to ignore the laws against punching somebody’s lights out, for example, if you reasonably believe the person is trying to kill you.

So in this case, where absolutes of the law and of conscience may collide, whose discretion should ultimately prevail — the Justice Department’s, or Ms. Raich and her doctor’s?

A NOTE OF CLARIFICATION AND CORRECTION

An earlier version of this post misstated the genesis of this case. It arose from a raid by federal agents and local police on the home of another medical marijuana user in California, not from an attempt to prosecute Ms. Raich.

The raided user was growing her own marijuana; Ms. Raich is unable to do that and depends on other people to supply her. Fearing a sudden cutoff of access to marijuana if she or her suppliers were to be raided or arrested, Ms. Raich went to court seeking an injunction that would preclude such steps; she and her anonymous growers are the plaintiffs in the case.

The offending sentence above has now been amended. Thanks to commenter Ben (No. 42 below) for calling your blogger’s attention to the error, and prompting me to reread the background portion of the court’s published decision more closely.

Does the fact that Ms. Raich sued pre-emptively, and has not herself been the target of enforcement action, change the answer to the question above? Would it be different if the case before the court still concerned the medical marijuana user whose home actually was raided (she withdrew as a co-plaintiff in 2005)?

 



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