However, the door has never been fully
closed, and now a federal appeals court is set to hear
arguments in the latest round of legal wrangling over
The case to be argued Monday before
the 9th U.S. Circuit Court of Appeals in San Francisco
narrows the matter 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 or free of
It would apply only to the sickest
patients and their suppliers, regardless of whether
they live in one of the 11 mostly Western states that
allow medical marijuana.
"A victory would affect people who are
very seriously ill, facing death or great physical
suffering," said Randy Barnett, a Boston University
law school professor working on the case.
The case was brought by Angel Raich, a
40-year-old mother of two from Oakland who suffers
from scoliosis, a brain tumor, chronic nausea and
other ailments. She uses marijuana every couple of
hours to ease her pain and bolster her appetite.
"She'd probably be dead without
marijuana," said her doctor, Frank Lucido, who has
recommended marijuana for some 3,000 patients.
"Nothing else works."
The Bush administration says the
lawsuit is without merit.
"There is no fundamental right to
distribute, cultivate or possess marijuana," Assistant
U.S. Attorney Mark Quinlivan, the government's lead
medical marijuana attorney, wrote to the appeals
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 but the federal government insists
there is no medical value to the drug.
In 2001, the Supreme Court ruled that
Raich's supplier, the Oakland Cannabis Buyer's
Cooperative, could not lawfully dispense marijuana
despite the California voters' action.
Two years later, in a small victory
for medical marijuana backers, the high court let
stand a 9th Circuit decision saying doctors have a
First Amendment right to discuss or recommend the drug
to patients without the threat of federal sanctions.
But last June, the Supreme Court ruled
the federal government could prosecute medical
marijuana users and their suppliers.
In some states, federal agents have
been sporadically arresting users and raiding
so-called pot clubs that dole out the drug to
patients. Raich herself was arrested this month for
disorderly conduct while demonstrating outside the
federal courthouse in Oakland over a recent raid on a
medical marijuana dispensary.
However, a footnote by Justice
in his 2001 ruling left the legal questions
surrounding medical marijuana unsettled and helped
open the door to Monday's hearing.
Thomas wrote that important underlying
constitutional questions remain unresolved, such as
Congress' ability to interfere with states
experimenting with their own laws and whether
Americans have a fundamental right to marijuana as a
vehicle to help them stay alive and ease pain.
The justices answered the first part
of that footnote in June, ruling in another case
brought by Raich that patients living in states with
medical marijuana laws could be prosecuted because
Congress has classified marijuana as an illegal
That prompted Reps. Dana Rohrabacher,
R-Calif., and Maurice Hinchey, D-N.Y., to propose
legislation that would have blocked federal
prosecution of medical marijuana users in states where
it is legal. The House voted against the measure,
264-161. Hinchey will resurrect the proposal this
summer, a spokesman said.
Raich's latest action is a bid to
settle the second part of Thomas' footnote.
Even if it is successful, the case
would be unlikely to stop the federal raids on pot
clubs or protect most users and suppliers.
Regardless of the outcome, Raich said
she will continue using marijuana to treat her
symptoms, and will keep fighting to do so without the
threat of prosecution. She expects her case to go from
the 9th Circuit to the Supreme Court no matter what
"I am going to keep doing this until
they stop me because this is not a medical cannabis
case but a right to life case," she said. "The federal
government can say who can live and who can die if I
lose in the Supreme Court."