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Medical Marijuana Focuses on Right to Life
David Kravets | Boston Globe | 03/27/06

PASADENA, Calif. --A lawyer for an ill California woman whose doctor says marijuana is the only medicine keeping her alive asked an appeals court Monday to prevent federal drug agents from ever arresting her.

The case, focusing on whether the gravely ill have a right to marijuana to keep them alive when legal drugs fail, is likely to reach the U.S. Supreme Court soon. Yet each time the high court has ruled on medical marijuana it has come down against allowing the sick and dying to use the drug to ease their symptoms and possibly prolong life.

The latest legal wrangling once again highlights the tension between the federal government, which declares marijuana an illegal controlled substance with no medical value, and the 11 states, including California and Rhode Island, allowing medical marijuana for patients with a doctor's recommendation.

"Medical cannabis is necessary for the preservation of Angel Raich's life," said Randy Barnett, the Oakland woman's lawyer. He later told the three-judge panel of the 9th U.S. Circuit Court of Appeals that, "If she obeys the law, she will die."

Raich, a 40-year-old mother of two, suffers from scoliosis, a brain tumor, chronic nausea and other ailments. On her doctor's advice, she uses marijuana every couple of hours to ease her pain and bolster a nonexistent appetite.

Last year, the Supreme Court came down against Raich, in what was the court's second ruling against medical marijuana since 2001. Because Congress decided marijuana was illegal under the 1970 Controlled Substances Act, the justices ruled, medical marijuana users and their suppliers could be prosecuted for breaching federal drug laws, even if they lived in a state where medical marijuana was legal.

Because of that ruling, the legal issue has narrowed to the so-called right to life theory: that marijuana should be allowed if it is the only viable option to keep a patient alive.

Assistant U.S. Attorney Mark Quinlivan could not guarantee to the court that Raich or other serious ill patients using medical marijuana would not be prosecuted. Over the years, the government has raided dozens of medical marijuana dispensaries, mostly in California.

Quinlivan told the judges that nobody has a right to use marijuana, and said a ruling in Raich's favor would open the floodgates to "people who want to use other substances" that are not approved for medical purposes.

Judge Harry Pregerson asked Quinlivan whether it was OK for Raich to die or succumb to "unbearable suffering."

"So go ahead and die. That would be all right?" he asked.

"Congress has made that value judgment," Quinlivan responded.

Another judge, Arlen Beam, suggested that Raich could only make a defense that marijuana is medically necessary if she's prosecuted. He said she would likely prevail by stating she was only breaking the law to stay alive.

"It seems to me, if this was a criminal prosecution," Beam told the government's lawyer, "you would lose your argument."

After the hearing, Raich said, "I think I'm gonna win."

During the 70-minute hearing, Barnett likened Raich's plight to women being allowed to have an abortion even after the fetus has become viable, if the abortion was necessary to safe the woman's life.

"This is a new argument which they have come up with," Quinlivan told the judges.

Pregerson responded, "There was nothing wrong with that." Pregerson added that "You got to go back to life, liberty and the pursuit of happiness. That takes care of it all."

Voters in 1996 made California the first state to authorize patients to use marijuana with a doctor's recommendation. Ten other states have since followed suit, including Rhode Island this past January.

In 2001, the Supreme Court ruled that Raich's supplier, the Oakland Cannabis Buyer's Cooperative, could not lawfully dispense marijuana despite California voters approving its medical use.

The court did not indicate when it would rule on a case that both sides expect would be appealed to the Supreme Court.

The case is Raich v. Gonzales, 03-15481.

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