ANOTHER COURT DEFEAT FOR OAKLAND WOMAN WHO USES MARIJUANA FOR
PAIN

An Oakland woman whose doctor says marijuana is the only medicine
keeping her alive is not immune from federal prosecution on drug
charges even though medicinal pot is legal in California, a federal
appeals court ruled Wednesday.

The ruling in the ongoing legal debate over using marijuana for
medical purposes was the latest defeat for Angel Raich, a mother of
two suffering from scoliosis, a brain tumor, chronic nausea and other
ailments who sued the federal government pre-emptively to avoid being
arrested for using marijuana. On her doctor's advice, Raich eats or
smokes marijuana every couple of hours to ease her pain and bolster a
non-existent appetite because conventional drugs did not work.

"I'm a dead woman walking," Raich said after the ruling. "The 9th
Circuit is saying the sickest of the sick marijuana patients have no
constitutional right to life. ... Now, if the DEA (Drug Enforcement
Administration) knocked at my door, they could take my life and get
away with it." Raich, 41, began sobbing when she was told of the
decision and said she would continue using the drug.

The ruling again highlighted the conflict between the federal
government, which declares marijuana an illegal controlled substance
with no medical value, and the 11 states that allow medical marijuana
for patients with a doctor's recommendation. The U.S. Supreme Court
ruled against Raich two years ago, saying medical marijuana users and
their suppliers could be prosecuted for breaching federal drug laws
even if they lived in a state, such as California, where medical pot is legal.

Because of that ruling, the issue before the 9th U.S. Circuit Court
of Appeals was narrowed to the so-called right to life theory: that
the gravely ill have a right to marijuana to keep them alive when
legal drugs fail.

Robert Raich, the plaintiff's attorney and ex-husband, said they
might ask the U.S. Supreme Court to review this ruling, and might ask
U.S. District Judge Martin Jenkins of San Francisco "to review issues
that the 9th Circuit left unresolved."

Although the court agreed medical marijuana is slowly gaining legal
acceptance, it found that "legal recognition has not yet reached the
point where a conclusion can be drawn that the right to use medical
marijuana is 'fundamental' and 'implicit in the concept of ordered liberty.'"

"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," Judge Harry Pregerson wrote.

Raich was asking the court to block enforcement of the 1970
Controlled Substances Act, which criminalized marijuana, LSD, heroin
and other drugs.

The court left open the possibility that Raich, if she was arrested
and prosecuted, might be able to argue that she possessed marijuana
as a last resort to stay alive, in what is known as a "medical
necessity defense."

"Though a necessity defense may be available in the context of a
criminal prosecution, it does not follow that a court should
prospectively enjoin enforcement of a statute," Pregerson wrote in
the unanimous ruling.

When the case was argued before the appeals court a year ago, the
government said it could not guarantee that Raich or other seriously
ill patients using medical marijuana would not be arrested or
prosecuted. Over the years, the government has raided dozens of
medical marijuana dispensaries, mostly in California.

"I have to get myself busted," Raich said, "in order to try to save my life."

In a partial dissent, Judge C. Arlen Beam said Raich had no legal
standing to even bring a case because she had not been arrested.

Leaders in the medical marijuana movement said they would continue
fighting for the cause.