MEDICAL POT USER LOSES AGAIN IN FEDERAL COURT

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.