In the court's hands: our right to be free from pain

December 01, 2004

Daniel Abrahamson, OP/ED, Houston Chronicle

Angel Raich was confined to a wheelchair and unable to even hug her daughter when a nurse mentioned a medication that she had never considered. Raich, who suffers from multiple debilitating conditions, including an inoperable brain tumor, scoliosis and fibromyalgia, had tried 30 medicines, none of which had helped alleviate her pain.

Raich, 39, who calls herself a proper conservative mom, had never smoked marijuana in her life, and was taken aback at the nurse's suggestion that she try medical cannabis. But nothing else was working, so Raich finally relented and tried it. Raich can now walk, hold down food and play with her family. She credits the medicine with saving her life.

In the U.S. Supreme Court this week, oral arguments were heard regarding Raich's right to use her medicine without fear of federal prosecution or arrest. The case, Raich v. Ashcroft, was brought by her and another seriously ill California patient, Diane Monson, who seek to prevent federal law enforcement officials from seizing their herbal medicine and arresting them for violating federal drug laws.

Raich uses medical marijuana in California, one of the 10 states that have enacted laws in the past eight years permitting seriously ill patients to use medical marijuana to relieve their suffering per their physician's recommendation. These laws were passed against the vocal opposition of the federal government.

The Supreme Court's decision could have many different implications. Should the court rule in the Raich patients' favor, their victory may dramatically redraw the lines of federal police powers and further empower states and their individual citizens — to pursue policies and engage in a wide array of conduct free from federal government interference.

Should the court rule against the Raich patients, the status quo will almost certainly prevail. Namely, the medical marijuana laws that have been passed will remain on the books, and patients in those states will continue to receive the various protections conferred by those laws. If the Raich patients lose, the only question will be whether, when and how the federal government will use federal police, prosecutors and courts to move against individual patients to deprive them of their state-created rights.

If recent history is any guide, it appears that federal officials lack either the will or the resources to arrest or prosecute more than a small handful of the tens of thousands of persons currently using medical marijuana around the country, perhaps because federal juries are reluctant to convict sick persons for using a medicine that relieves their pain. Of course, even a single federal prosecution of a sick person for using a physician-recommended medication is too many; but as a practical matter, the average medical marijuana patient in compliance with their state law will have little to fear from the federal police.

But the court also has an important opportunity to decide the Raich case by appealing to principles of fundamental liberty embodied in the federal Constitution: namely, the right to be free from unnecessary pain and suffering. This should prevent the federal government from being able to come between a seriously ill patient and their physician-recommended medicine. The Drug Policy Alliance, on behalf of various medical and public health organizations, including the California Medical Association and the Leukemia and Lymphoma Society, is asking the Supreme Court to embrace this important liberty interest and to prevent federal drug agents from arresting Angel Raich and Diane Monson or destroying their medicine.

While the Raich case is ostensibly about medical marijuana, the Supreme Court's decision in that case will have far less impact on medical marijuana than on other areas of jurisprudence. Medical marijuana laws are firmly implanted in several states and will likely spread to other states, and no ruling in the Raich case can alter this fact. But the high court's decision in this case will help determine the power of the federal police and, directly or indirectly, speak to the rights of individuals to remain free from serious, debilitating pain even when doing so raises the moral ire of the federal government.

Hopefully, Angel Raich and her family will be able to rest easy.


Abrahamson is director of Legal Affairs for the Drug Policy Alliance and co-author of a brief to the U.S. Supreme Court in the Raich case on behalf of the California Medical Association and other medical and public health organizations. The brief can be viewed at

drugpolicy.org.

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