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, AMNews staff. April 9, 2007.

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.' "