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Court rejects constitutional right to marijuana

But judges said patients still can try to use medical necessity as a defense if they are criminally prosecuted.

By Amy Lynn Sorrel, amednews staff. April 9, 2007.

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Federal judges have found that physician-approved use of medical cannabis to save a patient's life is not a constitutionally protected right. But proponents say the decision does not disturb certain protections already in place for patients and doctors.

Angel McClary Raich sued the government in 2002 seeking relief from the federal ban on medicinal use of the drug. She argued the law violates her fundamental right to preserve her life.

The 41-year-old California woman has an inoperable brain tumor, scoliosis, a life-threatening wasting syndrome and other debilitating ailments. Raich argued cannabis essentially keeps her alive by stimulating her appetite and relieving her pain. Conventional medications have been ineffective or caused intolerable side effects, court records state.

The case returned to the 9th Circuit Court of Appeals after the U.S. Supreme Court in 2005 ruled the government has the right to arrest patients for using cannabis, in spite of state laws that allow it for medical purposes. The high court sent the case back, allowing Raich to make her case again, this time using the personal constitutional rights argument.

In a March ruling, a three-judge panel of the 9th Circuit Court concurred with the Supreme Court and said that, in spite of her condition, Raich was not immune to possible federal criminal prosecution.

"We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law," the court stated. "But 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.' "

The government declined to comment for this story. Raich's attorneys could not be reached for comment, and it is unclear whether they will appeal the ruling to the full 9th Circuit.

Although proponents found the decision disappointing, they said it still does not undermine the validity of state protections.

"This [case] was an attempt to create an additional protection for patients and proved unsuccessful, but it does not in any way roll back the protections that were already there," said lawyer Graham Boyd, director of the American Civil Liberties Union Drug Law Reform Project.

Eleven states allow medical marijuana use and New Mexico is likely to be next. Gov. Bill Richardson has indicated he will sign that state's legislation. The New Mexico Medical Society has not taken a position on it.

Boyd also noted the appeals judges' finding that if patients like Raich are federally prosecuted, they still can argue medical necessity as a defense against criminal liability, although it would be up to a court to decide.

According to the appeals court, Raich's medicinal use of marijuana would likely qualify her to raise a medical necessity defense if prosecuted. However, the judges stated, such a defense is not a valid basis for the court to block the enforcement of the federal statute outlawing the drug.

Safe so far

Federal law enforcement has yet to pursue medical marijuana patients, but "if they do, [patients] can have the assurance that they will have a defense," Boyd emphasized.

Family physician Frank H. Lucido, MD, Raich's treating physician, agrees that patients remain relatively protected. The appeals court decision should not discourage doctors from recommending cannabis to seriously ill patients who have no reasonable alternatives for fear their patients could go to jail, he added.

Nor does the ruling change existing federal protections for doctors, as long as they are not helping patients obtain the drug, he said. A 2003 U.S. Supreme Court decision upheld the privacy of the doctor-patient relationship, even when it involves discussions about medicinal marijuana.

"Doctors have been afraid because they either don't understand the law or they felt threatened by the medical board and don't want to stick their head out. Some honestly don't know the value of medical cannabis because we've never been taught," Dr. Lucido said.

Still, the "victory" in Raich's case is that it brought attention to the issue and accelerated efforts to protect patients and educate doctors so they can make safe recommendations, he said.

American Medical Association policy calls for further clinical research into the safety and efficacy of medical marijuana for seriously ill patients.

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