HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Sunday, March 26, 2006

Medical Marijuana Issue Back Before the Ninth Circuit

As reported by the AP (Yahoo), the Raich case is going to be argued in the 9th Circuit on Monday, this time to urge the narrower "right to life theory: that marijuana should be allowed if it is the only viable option to keep a patient alive or free of excruciating pain":

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 DOJ lawyers deny there is a "fundamental right to distribute, cultivate or possess marijuana." The Supreme Court upheld the constitutionality of the Controlled Substances Act, as applied to state medical marijuana laws, in 2005 in Gonzales v. Raich. [tm]

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