Medical marijuana case heads back to court

November 22, 2005

Guy Ashley, Mercury News (San Jose)

An Oakland woman whose landmark medical marijuana case was rebuffed five months ago by the U.S. Supreme Court renewed her legal fight Wednesday by filing papers in a federal appeals court.

Lawyers for Angel Raich, 40, filed a brief in the federal 9th Circuit Court of Appeals arguing that federal efforts to restrict medical marijuana violate her rights to take the only medication that allows her to avoid intolerable pain and death.

The brief marks a new legal strategy for Raich, who previously had argued that federal drug laws traditionally focus on interstate commerce and thus did not apply to Raich's use of locally grown marijuana.

That argument was rejected by the U.S. Supreme Court in a 6-3 ruling in June.

The latest legal salvo by Raich also argues that prohibiting her from taking medically necessary cannabis violates her due process rights, and that the federal Controlled Substances Act does not allow the federal government to prohibit medical use within a state that authorizes it.

California is one of 10 states with laws allowing the use of medical marijuana.

Raich suffers from an inoperable brain tumor and a "wasting syndrome" that makes it extremely difficult for her to keep food down. After trying 35 different pharmaceutical treatments, Raich said, she found that marijuana is the only drug she can tolerate that holds her seizures and other symptoms in check.

"This case implicates perhaps the most fundamental right of all, the right to preserve one's life," said Robert Raich, the plaintiff's husband and a member of her legal team.

A spokesman for the U.S. Attorney's Office in San Francisco, Luke Macaulay, declined comment Wednesday on Angel Raich's latest legal effort.

Raich's appeal will be heard by the same three-judge panel that upheld her right to use medical marijuana in 2003. That decision was reversed by the U.S. Supreme Court in June.

Raich, a mother of two, said she hopes the 9th Circuit panel will again rule in her favor.

"I just want the opportunity to be a mother to my children without having to live in constant fear that the federal government will raid my home or throw me in jail," she said.

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