Medical pot user loses again in federal court

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/03/15/MNG2EOLGPU1.DTL&type=health
A federal appeals court upheld the U.S. government's authority Wednesday to prosecute medical marijuana patients in California, but left open the possibility that a gravely ill patient could defend against criminal charges by showing that marijuana was her only shield against excruciating pain or death.
Ruling in a case that reached the Supreme Court two years ago, the Ninth U.S. Circuit Court of Appeals in San Francisco rejected an Oakland woman's last constitutional challenge to the use of federal drug laws against medical marijuana patients -- that it violates the fundamental right to preserve one's life and be free of severe pain.
With obvious reluctance, the three-judge panel said there is no right "deeply rooted in this nation's history and traditions'' to use medical marijuana to reduce pain or ward off death. California, whose voters enacted the nation's first law legalizing marijuana for medical use in 1996, has been joined by only 10 other states. The remaining states and the federal government recognize no such right, the court noted.
"For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental,'' said Judge Harry Pregerson. "That day may be upon us sooner than expected,'' he added.
But in a separate portion of the ruling, the court said 2-1 that seriously ill patients like Angel Raich of Oakland could defend against a federal prosecution by showing they needed marijuana to save their lives or prevent intolerable pain, and that legal drugs were ineffective.
Raich, 41, has used marijuana since 1997, taking it every two hours to combat the pain of scoliosis, endometriosis, seizures and a life-threatening wasting syndrome. Other drugs have proven painful and ineffectual, and her doctor says she would die in agony without marijuana.
If Raich obeys federal law, which forbids marijuana possession, "she will have to endure intolerable pain,'' said Pregerson, joined by Judge Richard Paez. However, they denied Raich's request for an injunction against federal prosecution, saying they could issue such an order only after a patient was charged with a crime. Raich has never been charged with a crime for her use of medical marijuana.
Judge Arlen Beam, a visiting jurist from the Eighth U.S. Circuit Court of Appeals in St. Louis, dissented from that portion of the ruling. He said the court was premature in addressing the issue and may be in conflict with a 2002 Supreme Court ruling that rejected an Oakland cannabis dispensary's claim that it was entitled to supply marijuana to seriously ill patients.
The Supreme Court later took up Raich's case, and ruled in 2005 that the federal government has the power to enforce its marijuana laws against patients and their suppliers who obtain the drug in California or any other state with a medical marijuana law.
In the 6-3 ruling, the court said Congress' constitutional power to regulate interstate commerce extends to a ban on drugs that, though supplied locally, are often sold across state lines. The appeals court addressed the remaining issues in the case Wednesday.
At a news conference after the ruling, Raich said she was shocked but added, "I'm not done fighting.
"I don't want that coffin, but from this point on I am walking dead," she said. "I will continue to use cannabis. I will continue to smoke cannabis. ... This is real medicine and the federal government cannot tell us any differently."
Her husband and attorney, Robert Raich, said she would appeal the ruling, either to the full Ninth Circuit or to the Supreme Court.
Graham Boyd, the American Civil Liberties Union's chief lawyer on drug issues, said the ruling could help members of a Santa Cruz medical marijuana collective that was raided by federal agents, who arrested their leaders and seized their marijuana. A lawsuit by the patients and the collective is pending before a federal judge in San Jose.
The court seemed to be saying that a seriously ill person who has been arrested, or whose medical marijuana has been confiscated, could claim a legal necessity for the drug, Boyd said. "It's the one silver lining on this dark cloud,'' he said.
E-mail the writers at begelko@sfchronicle.com and jzamora@sfchronicle.com.