Oakland activist drops medical marijuana case

May 10, 2007

Josh Richman, ANG Newspapers

Oakland medical marijuana patient and activist Angel Raich dropped her lawsuit against the federal government Thursday, ending a five-year legal odyssey which had taken her all the way to the U.S. Supreme Court.

"I've lost all faith in the judicial system, I don't understand how somebody can lose their constitutional right to life in this country," she said Thursday. "It's been really, really hard for me these last few months, and I wasn't happy about having to give up the case.

"But I'm really having a hard time medically speaking right now. My brain tumor has finally started causing damage, and I have to start radiation treatment in a couple of weeks at Stanford," she explained.

She added that she's lost some sensation in the left side of her face and has problems with blinking, chewing and swallowing.

"This is far from over, it's just a new beginning," Raich insisted. The battle now moves from courts to Congress. "I'm not going to give up."

She said she's talking with lawyers and lawmakers about drafting "a right-to-life, medical necessity sort of bill. ... It's basically going to protect the sickest of the sick, and it's going to be narrow because there are other bills already out there."

She's also continuing her work with medical-marijuana advocacy groups, and she'll go to Washington, D.C., later this month on a lobbying trip.

Besides the brain tumor, Raich, a 41-year-old mother of two, has scoliosis, wasting syndrome, fibromyalgia and a host of other ailments.

Raich and Diane Monson of Oroville plus two unnamed providers sued the government in October 2002 to prevent any interference with their medical marijuana use, but this case's seeds actually were sown in the Supreme Court's May 2001 decision on the Oakland Cannabis Buyers Cooperative's case.

The court in that earlier case ruled there's no collective medical necessity exception to the federal ban, which defines marijuana as having no valid medical use. But it didn't rule on constitutional questions underlying the medical marijuana debate, so Raich, Monson and their lawyers tailor-made a case raising exactly those issues.

A federal judge in San Francisco rejected their arguments in March 2003, but a 9th Circuit appeal panel later reversed that ruling, finding the plaintiffs could prevail at trial on their claim that the Constitution's Commerce Clause lets Congress regulate only interstate commerce, and that Californians' medical marijuana use neither crosses state lines nor involves money changing hands.

The U.S. Supreme Court heard the case in November 2004 and in June 2005 ruled 6-3 to uphold the federal ban, finding that even marijuana grown in backyards for personal medical use can affect or contribute to the illegal interstate market for marijuana and so is within Congress' constitutional reach.

But the 9th Circuit panel and the Supreme Court at that point had dealt only with the Commerce Clause argument, not other constitutional issues. Monson dropped out, but Raich pressed on as the case returned to the 9th Circuit for those other arguments.

Though clearly sympathetic to Raich's medical plight, a three-judge 9th Circuit panel concluded in March that medical necessity doesn't shield medical-marijuana users from federal prosecution, and that medical marijuana use isn't a fundamental right protected by the Constitution's guarantee of due process of law.

Raich could have asked that the March decision be reviewed by a larger, 11-judge 9th Circuit panel; or that it be reviewed by the U.S. Supreme Court; or that it return to U.S. District Judge Martin Jenkins of San Francisco for a few unresolved issues.

But Robert Raich, her ex-husband and one of her attorneys, said Thursday the legal avenues left to them "did not look fruitful. It's a sorry commentary that right now we simply cannot depend on the courts to uphold fundamental rights, even the right to life."

Rob Kampia, executive director of the Marijuana Policy Project in Washington, D.C., said Congress is where Raich is needed most, as the House this summer probably will take up, for the fifth consecutive year, a bill to forbid federal prosecution of patients in the 12 states with medical marijuana-laws.

Last year's vote on the bill by Rep. Maurice Hinchey, D-N.Y., and Rep. Dana Rohrabacher, R-Huntington Beach, was 259-163 against the amendment. The measure received 161 votes in 2005; 148 in 2004 and 152 in 2003; it would need 218 to pass.

Contact Josh Richman at jrichman@angnewspapers.com or (510) 208-6428.



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