Angel McClary Raich

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<span class=postbold>See Also</span>: cannabis by jurisdiction | nation | Angel Raich

Controversial treatment: Wife, mother of two says she owes her life to medical marijuana

by Jennifer Carnig, Oakland Tribune
July 13th, 2003


<table class=posttable align=right width=250><tr><td class=postcell><img src=bin/raich-angel.jpg></td></tr></table>A rabbit's foot, a wedding ring, a photo of the kids - the little things in life that people keep close by. For Angel McClary Raich, it's a blue- and gold-flecked glass pipe packed full of sticky green marijuana.

``My whole life depends on cannabis,'' the gaunt 37-year-old says unapologetically, the thin pipe held tight between her bony fingers. ``It's my medicine. I would die without it.''

Raich, the wife of a prominent Oakland attorney and mother of two teenagers, is a medical marijuana patient. Every two hours, she either smokes, eats or inhales marijuana through a vaporizer, consuming more than eight pounds of cannabis a year. She cooks with thick green marijuana olive oil and is massaged with a creamy hemp balm.

Though she says she hates it, the dank smell and earthy taste of the drug now permeate every aspect of her life. It's come to be her sustenance and her lifeblood, and without it, both Raich and her Berkeley doctor say she would become gravely ill.

Diagnosed with a laundry list of ailments, including an inoperable brain tumor, scoliosis, wasting syndrome, seizures and chronic pain, Raich has no choice but marijuana, he says.

``She has tried essentially all other legal alternatives to cannabis, and the alternatives have been ineffective or result in intolerable side effects,'' says her physician, Dr. Frank Lucido, explaining that most medicines make Raich vomit violently or induce hot and cold flashes, shakes, itching or nausea.

Though she eats at least 3,000 calories a day, she's emaciated, carrying only 97 pounds on her 5-foot-4 inch frame. She's in constant agony and is often so weak that she can't get out of bed or even take herself to the bathroom. On a recent ``good day,'' she couldn't pull out a dining room chair to sit down without the help of her husband, Robert.

But, before the marijuana, it used to be worse, Raich says. She was partially paralyzed on the right side of her body and had to use a wheelchair for four years. The cannabis - ``my medicine,'' as she calls it - is the only treatment that's ever worked for her. It gave her ability to walk again and relieved the paralysis.

``Marijuana is my miracle,'' Raich says. ``I just wish the federal government and (Attorney General) John Ashcroft would see it that way.''

Such is the clash between California's medical marijuana law, which allows people to grow, smoke or obtain marijuana for medical needs, and the federal government's rejection of the state's 1996 voter-approved initiative supporting such acts.

A high-profile federal crack down on the treatment has resulted in the closure of cannabis clubs throughout the state - including Raich's club, the Oakland Cannabis Buyers' Cooperative - raids on growers and arrests of activists like Oakland's ``guru'' Ed Rosenthal, who was convicted of cultivating marijuana but spared a prison sentence last month.

And who's left in the middle as the state and the federal government duke it out? About 30,000 patients like Raich, who say they need marijuana to cope with chronic pain, improve their appetite or otherwise soothe the effects of cancer, HIV and AIDS, and degenerative diseases like multiple sclerosis.

So Raich has taken an unusual step. Instead of idly waiting for a raid on her or her two anonymous suppliers, she's gone on the offensive, seeking an injunction that would prevent the federal government from prosecuting her for using the plant she calls her ``life-saver.'' While she lost the case in March, she and her husband/lawyer have appealed to the 9th U.S. Circuit Court of Appeals.

Robert Raich, who in 2001 argued unsuccessfully before the U.S. Supreme Court in another medical marijuana case, says he expects his wife's case to make it before the high court as well. He and other medical marijuana advocates hope that Angel's case will be the Roe v. Wade of the cannabis debate, deciding once and for all that using cannabis as a medication is protected by the Ninth Amendment.

Angel hopes so, too.

``I feel like the government wants to execute me for being sick,'' she says. ``Well, I'm not going to let them do it. I'm not going to give up on my life. I have two children, and I promised them while I was in that wheelchair that I would fight to stay alive, and I'm certainly not going to give up on that promise now when I can move. I love my children too much to allow Ashcroft to take away their mother.''

As Raich slowly shuffles around her sunny Oakland house in blue booty slippers, taking deliberate, small steps to move, her determination is clear. Though each step hurts - ``my pain level is either on high or overload 24 hours a day'' - she refuses to allow it to keep her down on days when she has enough energy to be active.

She loves crafts and cooking. Her home is decorated with ceramic animals she made in high school, and she bakes her own hemp zucchini bread and carrot cake, as well as separate dinners for her family.

But her real passion is gardening, and Raich is turning her back yard into a ``sanctuary.'' The plot of land is filling in with sweet-smelling jasmine and bougainvillea, and plans for a small pond and waterfall are in the works. But it's a slow moving process since it takes so much out of Raich. The last time she worked on it was almost a month ago.

``I love it, but it just kills me,'' she says. ``I'm down for weeks after I do anything so it's going to take me a lot of stages. But I need to have a meditation and gardening is my outlet for that. There's something kind of healing about having your hands in the dirt.''

Though she's visibly frail - her cheek bones and large, sunken in brown eyes are her most striking features - Raich shows strength most people could never dream of. Just breathing causes pain. Sometimes, on real bad days, if her husband or her kids just brush against her, her body will jerk and convulse in pain. But she persists.

``Angel has one of the strongest spirits I've ever seen,'' says her husband, Robert. ``That's one of the things that initially attracted me to her.''

The couple met three years ago through the Oakland Cannabis Buyers' Cooperative, where Raich used to go to get her drugs and where Robert is an attorney. Though activism brought them together, the pair are more silly and sweet together than militant.

In baby talk voices, they call each other ``Moosey,'' a pet name referring to Robert's college days at Harvard.

``We wanted our own thing, not like honey - we wanted something special,'' Angel Raich says, laughing. ``Moosey just kind of fit. We're the Mooses.''

Their house is decorated appropriately. The living room is overrun with moose stuffed animals - they even have a plush ``mooseskin'' rug, with a big Bullwinkle head on it - and statues and dolls of angels.

For their wedding, a storybook affair that took place last summer at Oakland's Dunsmuir Historic Estate, they even had a special pillow made for the rings - a moose in a tuxedo with golden angel wings. ``I still pinch myself,'' says Robert Raich. ``I can't believe things have worked out so perfectly. Since the day we met, I've never looked back. I immediately fell in love with her.''

Which is why Angel's illnesses take such a toll on him, she says. ``He's my hero, my knight in shining armor,'' Raich says, her eyes tearing. ``I learn more and more about unconditional love from him every day.''

But it was her own unconditional love for her children, a 14-year-old daughter and a 17-year-old son, that first brought Raich to medical marijuana. Raich has faced serious illnesses since adolescence. Now that she had children, she began to see it take a toll on them.

``My daughter used to cry so much because her mom was in a wheelchair and she didn't understand why her mother couldn't do all of the things that her friends' mothers did,'' Raich says, her voice low and shaking. ``It was breaking my heart - I couldn't do anything to comfort them. I couldn't even hug them sometimes because it hurt so much.''

And then, a few weeks later, on Aug. 3, 1997, Raich's and her children's lives changed forever. She was at a hospital in Stockton, where she grew up and was living at the time, when a nurse who had been working with her for a while approached her. The nurse saw that no treatments were working on any of Raich's conditions and that she was depressed and miserable.

``So she pulled me aside and asked me about medical marijuana,'' Raich retells. ``And I was totally offended. I was really mad at her for even suggesting it because I was totally against drugs.''

But when she went home that night and her daughter was in tears yet again, Raich made up her mind to start reading up on the issue. Soon she was seeing a doctor to get a prescription. It was then that she says her life shifted for the better.

Still, there's not a day that goes by that Raich doesn't wish she could find relief from another source, she says.

``I hate that I have to take cannabis. If I had a choice, I'd take the choice in a heartbeat,'' she says. ``But I don't have an alternative. Cannabis is my only alternative.''

With each puff she takes, Raich breathes in new life, she says. And even more importantly to her, she exhales new life and longevity into the time she has left with her children.

``I promised my kids I would fight to be alive and I'd do anything I could to be here for them,'' she says. ``I won't go back on that promise.''

Until she dies or finds another miracle, then, inhale and exhale will be Raich's only medication.

<hr class=postrule>
You can e-mail Jennifer Carnig at jcarnig@angnewspapers.com or call (925) 416-4842

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Posted on Tue, Dec. 16, 2003



Federal appeals court OKs medical marijuana in some cases

By Crystal Carreon
Mercury News

In a move that emboldens California patients who rely on medicinal marijuana, a federal appeals court on Tuesday ruled that those who grow their own crop or get it for free are exempt from a U.S. law that bans the drug.

The 9th Circuit Court of Appeals in San Francisco upheld the arguments of two seriously ill California women, including one from the East Bay, who said their private use in a state that passed a medicinal marijuana law should not make them vulnerable to federal raids.

The 2-1 decision, handed down Tuesday afternoon, directly affects Oakland resident Angel McClary Raich and Diane Monson of Butte County, and provides a rare victory for advocates of California's medicinal marijuana law, which contradicts federal drug laws. It could also be a promising development in the pending case of a Santa Cruz County couple whose cannabis cooperative was raided last year.

Federal officials could not be reached late Tuesday, but a Drug Enforcement Agency spokesman in San Francisco said it was too early to say how the ruling would affect how agents do their work, which ``targets large-scale distributors of drugs.''

The court on Tuesday ruled that prosecuting medicinal marijuana users under the 1970 Controlled Substances Act is unconstitutional in states that allow such use under the advice of a doctor, if the cannabis isn't sold or transported across state lines or used for non-medicinal purposes.

``The intrastate, non-commercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician'' is different from drug trafficking, the court wrote in its majority opinion. ``Moreover, this limited use is clearly distinct from the broader illicit drug market.''

Gerald F. Uelmen, the attorney representing Valerie and Michael Corral of the Wo/Men's Alliance for Medical Marijuana in Santa Cruz County, said he was ``optimistic'' the court's rationale could apply to his case, which stems from a Sept. 5, 2002, federal raid on the cooperative.

``Closed cooperatives who grow and share among themselves also do not affect interstate commerce,'' he said. ``This is a very important decision for patients in California. This is great news.''

Robert Raich, an Oakland attorney who presented arguments on behalf of his wife, Angel McClary Raich, and her two unidentified suppliers, along with Oroville resident Monson, was ``ecstatic'' with the decision.

``This is the way it should be,'' Raich said from his home Tuesday night. ``Certainly for the time being, I know my wife is safe and can use the medicine that keeps her healthy.''

McClary Raich, who relies on marijuana to cope with an inoperable brain tumor and seizures, felt that her life was threatened by the rash of federal raids on medicinal suppliers, her husband said.

Monson, whose home was raided in August 2002, grows her own crop to alleviate symptoms of a degenerative spinal disease, court records show.

Both women filed the lawsuit in October 2002 against Attorney General John Ashcroft and Drug Enforcement Administration Chief Asa Hutchinson, in an effort to ward off federal interference. A district judge ruled against them in March, prompting Raich to take the suit to the 9th Circuit Court.

The decision was a blow to the Justice Department, which argued that medicinal marijuana laws in nine states were trumped by the Controlled Substances Act, outlawing marijuana, heroin and a host of other drugs nationwide.

California voters in 1996 became the first in the country to pass a medicinal marijuana initiative, Proposition 215, the Compassionate Use Act. Since its passage, bitter legal battles have pitted federal drug laws against those advocating states' rights.

In July 2002, the state Supreme Court ruled that Californians who have a doctor's approval to smoke marijuana are protected from conviction for violating state drug laws. But in 2001, the U.S. Supreme Court issued a ruling that made it impossible for third parties to provide medicinal marijuana to seriously ill patients without running afoul of federal drug laws. As a result, several Bay Area medicinal pot clubs were shuttered.

Eight other states have adopted similar medicinal marijuana laws, including Alaska, Arizona, Hawaii, Nevada, Oregon and Washington state -- which are under the jurisdiction of the 9th Circuit Court.

<hr class=postrule>
<center>The Associated Press contributed to this report. Contact Crystal Carreon at ccarreon@mercurynews.com or (408) 920-5460.

© 2003 Mercury News and wire service sources. All Rights Reserved.
http://www.mercurynews.com </center>

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THE STATE

Stage Set for Legal Showdown Over Pot

By Eric Bailey
L.A. Times Staff Writer
The L.A. Times

May 19, 2004

SACRAMENTO — A pair of medical marijuana patients won legal protection Tuesday against arrest and federal prosecution, setting the stage for a U.S. Supreme Court showdown to determine whether states can allow cannabis to be used as medicine.

U.S. District Judge Martin Jenkins in San Francisco issued a preliminary injunction against the U.S. preventing it from pursuing a drug case against the two patients — Angel Raich of Oakland and Diane Monson of Oroville — and two anonymous caregivers who supply the pot.

Tuesday's court order was expected in the wake of a December ruling by the 9th U.S. Circuit Court of Appeals, which declared that Raich and Monson were within their rights to use marijuana as medicine. As part of that decision, the three-judge panel ordered the lower court to issue a preliminary injunction against the federal government.

Despite that certainty, Raich expressed happiness that the ruling had arrived and said she was looking forward to the case going before the U.S. Supreme Court, perhaps by year's end.

"I want the public to know what the federal government has been doing after 9/11," she said.

Raich, who uses marijuana to offset the effects of an inoperable brain tumor, chronic wasting and numerous other illnesses, said she hoped her case would lead to the broader use of a drug that she considers a lifesaver.

Medical marijuana is legal in California with a doctor's recommendation, but federal law prohibits the use of pot for any purpose. Raich and Monson have argued that U.S. drug laws, which are based on the federal government's right to regulate commerce between the states, do not apply to them because the marijuana they consume is grown and consumed entirely within California.

Federal prosecutors are pressing ahead with a challenge in the U.S. Supreme Court, with oral arguments expected by early next year. But the high court might get an opportunity to step into the fray this summer if the Bush administration pushes, as expected, to reverse the 9th Circuit decision until the full case is heard.

Until then the appellate court ruling remains a binding precedent in the seven states within the 9th Circuit's jurisdiction that have medical cannabis laws.

<span class=postbold>See Also</span>: <a class=postlink href=http://www.angeljustice.org/index.php>Angel's Fight To Stay Alive</a>

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November 27 / 28, 2004
CounterPunch
Pot Shots

Ashcroft v. Raich: Medical Marijuana and the Supremes

By FRED GARDNER
<blockquote>
<i><b>"I can see the day comin' when even your home garden's gonna be against the law."</b></i>

-Bob Dylan
</blockquote>
On Monday morning, Nov. 29, the U.S. Supreme Court will hear oral arguments in the case now known as Ashcroft et al v. Raich et al. The ruling, expected in July '05, will determine if and how the federal Controlled Substances Act applies to more than 100,000 people who use cannabis as medicine under the law in California and other western states. A win for Angel Raich and her co-defendant, Diane Monson, would confer unambiguous legitimacy; a loss will mean widespread terror with the DEA picking off growers, distributors and persons of interest at will.

The suit started out as Raich et al v. Ashcroft et al. It was filed in October, 2002, in response to intermittent DEA raids (including the one that closed the 6th Street club in San Francisco, and the destruction of WAMM's garden north of Santa Cruz). Angel McClary Raich, 39, was the prime mover. Her life would be at risk, she contended, if the feds raided the two caregivers who were growing her year's supply of cannabis (nine pounds, most of which she would incorporate into baked goods). So she sought a court order enjoining the Justice Department and the Drug Enforcement Administration.

Although painfully thin due to her afflictions, Angel (which is the name she took for herself) has a powerful ego and a desire to make history "for all of us." She comes from Stockton, working-class background. Her parents divorced when she was four. She has disturbing memories of being molested by a family member. At 12 she was put in a full-body brace to correct curvature of the spine. She developed asthma and had several cysts removed (endometriosis) while still in high school. She married her high school sweetheart. They worked as apartment managers in the Central Valley and had two kids. They divorced. Angel remarried and worked at a series of blue- and white-collar jobs. At age 30 she had a serious adverse reaction to the birth-control pill, resulting in partial paralysis. Confined to a wheelchair, in pain, she was given strong prescription painkillers -synthetic opiates, methadone and Fentanyl- which induced nausea, vomiting and other intolerable effects. She was hospitalized and made a feeble attempt to cut her wrists. A nurse advised her to try marijuana; Angel wouldn't hear of it because it could cost her custody of her kids. But then desperation led her to try the prohibited herb, and her pain receded, and in due course she regained her mobility and found her calling as a martyr/organizer.

By the end of the'90s Angel had moved from the Central Valley to the Bay Area, made friends with other patients and activists trying to implement California's medical marijuana law, and formed a non-profit of her own called "Angel Wings Outreach." In the course of helping patients deal with legal problems, Angel met attorney Robert Raich. "It really became hard to see where he ended and I began," Angel recalls. "We became one!" And you thought the guitarist who married his drummer was lucky? How about the lawyer specializing in medical-marijuana defense who hooks up with the woman who might die without it?

Rob Raich, 45, is a rabbi's son who went to Harvard and then to law school at the University of Texas. He is almost as thin as Angel, very soft-spoken and mild-mannered. It was Rob who had the insight, back in 1996, that section 885(d) of the Controlled Substances Act, which allows undercover police officers to buy, handle, and sell narcotics, could apply to a city-authorized cannabis dispensary. Nov. 29 will not be his first appearance before the Supremes. Rob represented the Oakland Cannabis Buyer's Co-op in a case initiated by the Clinton Justice Department in 1998. The Court eventually ruled that the OCBC couldn't claim "medical necessity" as grounds for violating the Controlled Substances Act. Whether an individual could claim "medical necessity" was not addressed in the OCBC case; it is one of the arguments Angel's lawyers make on her behalf in the present case.

Angel's co-plaintiffs are two anonymous growers ("caregivers" in terms of California law) and Diane Monson, a 47-year old accountant who has her doctor's approval to use cannabis to treat disabling back pain and spasms. In August, 2002, Monson was growing six outdoor plants in her home garden in the foothills of Oroville. DEA agents arrived to question her about a large quantity of marijuana growing elsewhere in Butte County on property that she and her husband owned and rented out. She told them she'd been unaware of the large grow. The DEA agents said they were going to confiscate her six plants then and there. (Ordinarily the feds don't concern themselves with small quantities of marijuana.) Monson contacted the Butte County Sheriff, and deputies soon arrived to confirm that her plants were legal under Prop 215. A standoff ensued during which the Butte County District Attorney, Mike Ramsey, asked the U.S. Attorney, John Vincent, to call off the raid. The feds prevailed, and as Diane Monson read aloud the text of Prop 215 ("I thought they needed to hear it," she says), the DEA agents macheteed and hauled away her almost-ready-to-harvest herbal painkiller.

Raich and Monson are represented by Rob, naturally, and San Francisco defense specialist David Michael, and Randy Barnett, a professor of constitutional law at Boston University School of Law, an authority on the 9th amendment. In requesting an injunction they argued, among other things, that the federal government has no jurisdiction because the process by which the plants were grown for and consumed by Raich and Monson did not affect interstate commerce significantly.

The request for a preliminary injunction was denied in March 2003 by U.S. District Court Judge Martin Jenkins. Raich et al appealed to the 9th Circuit, and in October '03, made their arguments to a three-judge panel (Pregerson, Paez and Beam, on loan from the 8th Circuit). In December '03 the 9th Circuit panel (with Beam dissenting) directed the District Court Judge to issue the preliminary injunction. It would read:

"Defendants, and their agents and officers, and any person acting in consort with them, are hereby enjoined from arresting or prosecuting Plaintiffs Angel McClary Raich and Diane Monson, seizing their medical cannabis, forfeiting their property, or seeking civil or administrative sanctions against them with respect to the intrastate, noncommercial cultivation, possession, use, and obtaining without charge of cannabis for personal medical purposes on the advice of a physician and in accordance with state law, and which is not used for distribution, sale or exchange." That injunction -which the Bush Administration is asking the Supreme Court to quash- is what made the summer of 2004 relatively stress-free for many Californians who were growing for or distributing to patients whose doctors had approved cannabis use.

The Justice Department case will be argued by acting Solicitor General Paul Clement. Barnett will do most of the talking for Raich-Monson. Each side has made its arguments in written briefs, and these have been supplemented by "amici" (friend of the court) briefs from interested parties. Each side gets 30 minutes for oral argument. Usually but not always the questions posed by the judges (who have already read the briefs and formed opinions) reveal enough to indicate which way they're leaning.

The feds argue that Congress had a valid goal in passing the Controlled Substances Act to regulate interstate commerce in licit and illicit drugs. "Medical" users growing their own would undermine that goal. Interstate commerce, although not affected by a few instances of medical users growing their own cannabis in California, is inevitably affected when all such instances are considered in aggregate. All marijuana-related activity is inherently economic because marijuana is a "fungible" substance -it can be bought and sold in commerce. All marijuana is essentially the same, and if the parties in this case didn't have marijuana grown for them, they'd be buying it on the market.

Among the feds' arguments is one usually left unspoken: prohibition serves the interests of the pharmaceutical corporations. As expressed in the Solicitor General's brief, "Excepting drug activity for personal use or free distribution from the sweep of the CSA would discourage the consumption of lawful controlled substances." It would also undercut "the incentives for research and development into new legitimate drugs." That's as close as the government has come to acknowledging that wider cannabis use would jeopardize drug-company profits.

The U.S. Supreme Court overturns three out of four cases it chooses to review, but Cassandra is not laying odds on Ashcroft v. Raich. The absence of Chief Justice Rehnquist (undergoing treatments for cancer) works to Raich's advantage. As a young lawyer in the Nixon White House, Rehnquist helped write the Controlled Substances Act. His questions during the OCBC oral argument were overtly hostile. And he's considered results-oriented (fight the war on drugs) rather than principled (curtail the overarching commerce clause). Of course Rehnquist could still read the transcript and vote on the Raich case, even if he's too sick to attend the oral argument. He could even write an opinion (or have his law clerks do so)... If there's a 4-4 tie, the opinion of the 9th Circuit stands, but doesn't become binding authority on the rest of the country.

Most of the amici briefs focus on the issue of states' rights. For people who remember the battles to end segregation in public schools in the South, there is obvious irony our side calling for "states' rights." It was in the name of states' rights that governors Orville Faubus and Ross Barnett barred the doors, while up north we were singing "The ink is black, the page is white, together we learn to read and write, to read and write. And now a child can understand this is the law of all the land -all the land!"

Another inversion involves the question of individual rights, to which so-called conservatives always pay lip service. The right to self-medicate is an individual right if ever there was one -but the conservatives are suddenly all about "public health," like a bunch of so-called liberals.

The marijuana prohibition takes us through-the-looking glass because it's based on the Mad Hatter's premise that marijuana is harmful, not helpful. The feds and their amici refer to marijuana as only "purportedly," "assertedly," "allegedly" medical. But the record established at the district court level -which is supposedly all the Court goes on- consists of four declarations by the two patients and their physicians showing that cannabis does indeed have medical benefits. The government submitted no evidence to the contrary. They contend it's just a question of law. The key precedent is a 1942 case, Wickard v. Filburn, which established that impact on interstate commerce is not a function of individual transactions (such as caregivers growing cannabis for Angel Raich) but of all such transactions in aggregate (all medical users growing their own or having it grown for them within California). Filburn was an Ohio farmer who grew more wheat than he was allowed to under the Agricultural Adjustment Act, which was intended to limit production to keep prices up. That Act was clearly trying to regulate economic activity. The Court ruled that Congress could regulate Filburn's consuming his own wheat on his own farm because if all farmers acted likewise, Congress's scheme to regulate the price would be undermined.

Raich et al argue that Wickard v. Filburn is a bad analogy because Filburn was selling some of the wheat he raised, and much more of it was being consumed by his cows (from which he derived milk, and which he sold occasionally) than by his family. He also raised chickens, and sold eggs, i.e., he was using his wheat in running a commercial farm. Moreover, the Ag Adjustment Act didn't apply to farmers growing small quantities for family use. The principle of "aggregation" established in Wickard has been challenged in two cases that Raich et al cite in their brief: Lopez (1995) and Morrison (2000).

Raich et al's arguments are designed to appeal to "conservatives." They point out that the Supreme Court, by ruling against them would, significantly extend federal power under the commerce clause (the last thing "conservatives" are supposed to want to do). "If the Court upholds Petitioners' claim of federal power, this case will supplant Wickard to become the most expansive interpretation of the Commerce Clause since the Founding, and this Court's landmark decisions in Lopez and Morrison will become dead letters." No transaction would be too small to concern the federal government. Not even the cultivation of six plants.

<hr class=postrule>
<center>Fred Gardner can be reached at journal@ccrmg.org</center>

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State Medical Marijuana Laws Remain Valid Despite U.S. Supreme Court Ruling in Gonzales v. Raich,

ACLU Says (6/6/2005)


FOR IMMEDIATE RELEASE
Contact: media@aclu.org

WASHINGTON -- In response to a U.S. Supreme Court ruling today in Gonzales v. Raich, that the federal government can enforce federal laws prohibiting the cultivation, possession, and use of medical marijuana even in states where medical marijuana is legal under state law, the American Civil Liberties Union urged state and local governments to protect individual patients and their caregivers.

"The power of state governments to enact and enforce state medical marijuana laws is not affected by the Supreme Court's ruling," said Allen Hopper, a staff attorney with the ACLU's Drug Law Reform Project. "State laws allowing the use of medical marijuana still offer patients significant protection."

In its decision, the Court overturned the Ninth Circuit Court of Appeals ruling that the federal government could not enforce federal marijuana laws against the cultivation, possession and use of medical marijuana by the plaintiffs, Angel Raich and Diane Monson. Angel Raich suffers from several conditions that cause severe, chronic pain, including an inoperable brain tumor, fibromyalgia, endometriosis, scoliosis, uterine fibroid tumors and rotator cuff syndrome. Her doctor warned the Court that she is likely to die if unable to use medical marijuana. Medical marijuana is also the only effective treatment that eliminates Diane Monson's severe back pain and spasms.

Gonzales v. Raich is the U.S. Supreme Court's latest look at the medical marijuana issue. In a case brought by the ACLU and others, Walters v. Conant, the Court chose to let stand the Ninth Circuit's ruling that under the First Amendment doctors can recommend and discuss medical marijuana with patients.

Valerie Corral was one of the plaintiffs in the Conant case and founded the Wo/Men's Alliance for Medical Marijuana (WAMM), a Santa Cruz, California-based hospice center that supplies medical marijuana to critically ill patients. The Drug Enforcement Administration raided WAMM in 2002. After the Ninth Circuit's ruling in Raich, a federal district court granted an injunction protecting WAMM from further federal raids and prosecution. After today's ruling, however, WAMM members fear that the injunction will be lifted.

In oral arguments last November in the Raich case, Justice Stephen Breyer suggested that patients ask the Food and Drug Administration to reclassify marijuana for medical use as "the obvious way to get what they want," adding, "Medicine by regulation is better than medicine by referendum."

The ACLU, however, pointed out in a recent legal challenge to the DEA that the federal government has a policy of obstructing research that could lead to the development of marijuana as a legal prescription medicine.

"Doctors and patients would like to take Justice Breyer up on his proposal to develop marijuana as a medicine through the FDA approval process," said Allen Hopper. "But the government's idea of 'medicine by regulation,' is to obstruct research. Now more than ever, Congress and local and state governments need to take action to protect patients and their caregivers."

Eleven states have enacted laws allowing patients to use medical marijuana, and a recent CNN/Time poll reported that 80 percent of Americans favor giving patients access to medical marijuana.

Information is available online for the ACLU's legal challenge to the DEA, In the Matter of Lyle Craker ("") and the Walters v. Conant case.

The ACLU's legal analysis of the decision is available online at: http://www.aclu.org/drugpolicy/medmarij ... 50606.html

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A Defeat For Users Of Medical Marijuana

State Laws No Defense, Supreme Court Rules

By Charles Lane
Washington Post Staff Writer
Tuesday, June 7, 2005; Page A01
The Washington Post

<table class=posttable align=right width=228><tr><td class=postcell><img src=bin/map-states.gif></td></tr><tr><td class=posttable>
<center><b><span class=postbold>Transcript</span></b></center><hr class=postrule>Supreme Court: Medical Marijuana - Washington Post Supreme Court reporter Charles Lane discusses the Court's decision to allow prosecution of those using marijuana for medical purposes.
</td></tr></table>The Supreme Court dealt a blow to the medical marijuana movement yesterday, ruling that the federal government can still ban possession of the drug in states that have eliminated sanctions for its use in treating symptoms of illness.

By a vote of 6 to 3, the court ruled that Congress's constitutional authority to regulate the interstate market in drugs, licit or illicit, extends to small, homegrown quantities of doctor-recommended marijuana consumed under California's Compassionate Use Act, which was adopted by an overwhelming majority of voters in 1996.

The ruling does not overturn laws in California and 10 other states, mostly in the West, that permit medical use of marijuana. In 2003, Maryland reduced the maximum fine for medical users of less than an ounce of the drug to $100.

But the ruling does mean that those who try to use marijuana as a medical treatment risk legal action by the U.S. Drug Enforcement Administration or other federal agencies and that the state laws provide no defense.

Writing for the court majority, Justice John Paul Stevens said the case was "troubling" because of users' claims that they needed marijuana to alleviate physical pain and suffering. But he concluded that the court had no choice but to uphold Congress's "firmly established" power to regulate "purely local activities . . . that have a substantial effect on interstate commerce."

Echoing an argument advanced by the Bush administration, Stevens expressed concern that "unscrupulous physicians" might exploit the broadly worded California law to divert marijuana into the market for recreational drugs.

The Bush administration, which has been emphasizing marijuana enforcement in its anti-drug strategy, hailed the ruling.

"Today's decision marks the end of medical marijuana as a political issue," said John P. Walters, President Bush's director of national drug control policy. "Our nation has the highest standards and most sophisticated institutions in the world for determining the safety and effectiveness of medication. Our national medical system relies on proven scientific research, not popular opinion."

But California Attorney General Bill Lockyer said that "seriously ill Californians will continue to run the risk of arrest and prosecution under federal law when they grow and or they use marijuana as medicine."

The ruling, he said, "shows the vast philosophical difference between the federal government and Californians on the rights of patients to have access to the medicine they need to survive and lead healthier lives."

Supporters of medical marijuana, noting that Stevens wrote that "the voices of voters allied with these respondents may one day be heard in the halls of Congress," said the fight over federal drug policy will shift to a new battleground.

"The decision highlights the opportunity we have to go to Congress and change these laws," said Robert Raich, a lawyer whose wife, Angel Raich, was one of two women who had sued to block enforcement of federal marijuana laws against them.

A House bill that would forbid the use of federal funds to prosecute medical marijuana use in states that permit it was defeated overwhelmingly last year but will be voted on again soon, advocates of medical marijuana said.

Yesterday's Supreme Court decision represented a victory for the court's supporters of federal power over its proponents of states' rights.

In two cases in the past decade, the court limited Congress's power to make laws in the name of regulating interstate commerce, saying that it had begun to intrude upon local affairs. Backers of medical marijuana had hoped to apply those precedents in this case, Gonzales v. Raich, No. 03-1454.

But Stevens concluded that the court was still bound by a 1942 Supreme Court decision that defined interstate commerce broadly to include, under certain circumstances, even subsistence wheat farming.

Much modern government regulation exists because of this broad definition of interstate commerce, which permitted the court to uphold, as exercises of Congress's commerce clause power, laws including New Deal farm controls and the ban on racial segregation in hotels and restaurants.

Stevens was joined by the court's three other consistent supporters of federal power, Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. He also picked up the votes of two justices, Antonin Scalia and Anthony M. Kennedy, who usually support states' rights.

Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas dissented.

Writing for the three, O'Connor noted that she "would not have voted for the medical marijuana initiative" in California, but she chided the majority for stifling "an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently."

In a separate dissent, Thomas added that if "the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives and potluck suppers throughout the 50 states."

The two California women who sued to block federal marijuana enforcement in California are Diane Monson, who was prescribed marijuana for lower-back pain, and Raich, who said that she must take the drug at least every two hours or else she will lose her appetite and die from a "wasting syndrome" whose medical cause is unknown.

"I don't know how to explain it," she said yesterday. "I just can't swallow without cannabis."

Monson's home was raided and her marijuana plants seized by federal agents in 2002; Raich says she receives the drug free from caregivers and joined Monson's lawsuit because she fears that her marijuana could be seized. Neither woman has been criminally charged. Raich's suppliers are also in the case, as John Does One and Two.

[palmspringsbum]

Supreme Court allows prosecution of medical marijuana

By Bill Mears
CNN Washington Bureau
Tuesday, June 7, 2005 Posted: 7:36 AM EDT (1136 GMT)


WASHINGTON (CNN) -- The U.S. Supreme Court on Monday ruled doctors can be blocked from prescribing marijuana for patients suffering from pain caused by cancer or other serious illnesses.

In a 6-3 vote, the justices ruled the Bush administration can block the backyard cultivation of pot for personal use, because such use has broader social and financial implications.

"Congress' power to regulate purely activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce is firmly established," Justice John Paul Stevens wrote for the majority.

Justices Sandra Day O'Connor, William Rehnquist and Clarence Thomas dissented. The case took an unusually long time to be resolved, with oral arguments held in November.

The decision means that federal anti-drug laws trump state laws that allow the use of medical marijuana, said CNN senior legal analyst Jeffrey Toobin. Ten states have such laws.

"If medical marijuana advocates want to get their views successfully presented, they have to go to Congress; they can't go to the states, because it's really the federal government that's in charge here," Toobin said.

At issue was the power of federal government to override state laws on use of "patient pot."

The Controlled Substances Act prevents the cultivation and possession of marijuana, even by people who claim personal "medicinal" use. The government argues its overall anti-drug campaign would be undermined by even limited patient exceptions.

The Drug Enforcement Agency began raids in 2001 against patients using the drug and their caregivers in California, one of 11 states that legalized the use of marijuana for patients under a doctor's care. Among those arrested was Angel Raich, who has brain cancer, and Diane Monson, who grew cannabis in her garden to help alleviate chronic back pain.

A federal appeals court concluded use of medical marijuana was non-commercial, and therefore not subject to congressional oversight of "economic enterprise."

But lawyers for the U.S. Justice Department argued to the Supreme Court that homegrown marijuana represented interstate commerce, because the garden patch weed would affect "overall production" of the weed, much of it imported across American borders by well-financed, often violent drug gangs.

Lawyers for the patient countered with the claim that the marijuana was neither bought nor sold. After California's referendum passed in 1996, "cannabis clubs" sprung up across the state to provide marijuana to patients. They were eventually shut down by the state's attorney general.

The U.S. Supreme Court ruled in 2001 that anyone distributing medical marijuana could be prosecuted, despite claims their activity was a "medical activity."

The current case considered by the justices dealt with the broader issue of whether marijuana users could be subject to prosecution.

Along with California, nine states have passed laws permitting marijuana use by patients with a doctor's approval: Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington. Arizona also has a similar law, but no formal program in place to administer prescription pot.

California's Compassionate Use Act permits patients with a doctor's approval to grow, smoke or acquire the drug for "medical needs."

Users include television host Montel Williams, who uses it to ease pain from multiple sclerosis.

Anti-drug activists say Monday's ruling could encourage abuse of drugs deemed by the government to be narcotics.

"It's a handful of people who want to see not just marijuana, but all drugs legalized," said Calvina Fay of the Drug Free America Foundation.

In its hard-line stance in opposition to medical marijuana, the federal government invoked a larger issue. "The trafficking of drugs finances the work of terror, sustaining terrorists," said President Bush in December 2001. Tough enforcement, the government told the justices, "is central to combating illegal drug possession."

Marijuana users, in their defense, argued, "Since September 11, 2001, Defendants [DEA] have terrorized more than 35 Californians because of medical cannabis." In that state, the issue has become a hot political issue this election year.

The case is Gonzales v. Raich, case no. 03-1454.

[palmspringsbum]

Feature: Angel Raich Tries Again on Medical Marijuana, But Judges Sound Skeptical 3/31/06

The Drug War Chronicle

Oakland medical marijuana patient Angel Raich was back in court Monday seeking an injunction to win protection from federal law enforcers who do not recognize her right to use her medicine, but skeptical questioning from a three-judge panel at the US 9th Circuit Court of Appeals suggests she will have an uphill battle.


<table class=posttable align=right width=300><tr><td class=postcell><img src=bin/raich-angel_angelleads.jpg width=300></td></tr><tr><td class=postcap>Angel Raich leads demonstrators to the office of medical marijuana opponent and arch-drug warrior Mark Souder, 5/4/05. </td></tr></table>Raich and fellow medical marijuana patient Diane Monson filed suit in the 9th Circuit seeking relief from federal law enforcers. The appeals court ruled in their favor on states' rights grounds, but was overturned by the US Supreme Court in June. In that ruling, the high court held that the federal Controlled Substances Act, which designates marijuana as a dangerous drug with no accepted medical uses, trumped state laws in those states that have legalized medical marijuana.

But that decision left unsettled other issues raised by Raich and her attorneys, Randy Barnett and Robert Raich. (Monson has dropped out of the case.) Among them are how and whether the "medical necessity" defense might apply to medical marijuana patients and a closely related argument that the US Constitution guarantees them a fundamental right to make life and death decisions about their own lives. Those were the issues argued Monday.

The case file includes uncontested testimony that Raich, who suffers from a variety of ailments, including an inoperable brain tumor, would suffer greatly and die of starvation if deprived of marijuana. Raich's personal physician included a sworn statement to that effect.

"Doctors, not the federal government know what's best for their patients," said Barnett, a professor of law at Boston University, before the oral arguments. "If a state decides to allow doctors to recommend proven treatments for their patients, then the federal government has no rightful place in the doctor's office."

"This case implicates perhaps the most fundamental right of all, the right to preserve one's life," said Robert Raich. "It also implicates the fundamental right to alleviate unnecessary pain and agony and protect bodily integrity."

The case is about Raich's "fundamental right to life," Randy Barnett told the court. Both the 5th and the 9th Amendments, as well as the doctrine of medical necessity, protected that right, he told the three-judge panel, according to an on-scene report provided by California NORML director Dale Gieringer.

But panel member Judge Arlen Beam immediately challenged Barnett, asking whether Raich even had standing to bring the case. Beam noted that Raich had not been arrested or prosecuted or even threatened with prosecution. Judges Richard Paez and Harry Pregerson then jumped in, asking if any other patients had been prosecuted, a question for which Barnett did not have a ready answer. According to California NORML, dozens of people operating under the state's medical marijuana law have been prosecuted by federal authorities, but almost all of them involved growing or distributing medical marijuana for others, not mere possession by patients.

Judge Pregerson questioned whether Raich's medical necessity claim was even valid given that she had not been arrested or prosecuted. Perhaps, he suggested, the appropriate way for Raich to raise the issue would be to get arrested and then use the defense.

That a patient would be arrested solely for being a patient would be "incredibly unlikely," said Assistant US Attorney Mark Quinlivan, who argued the case for the government, although he refused to rule out the possibility, especially if patients "flaunted" their use. "The federal government has always focused on large-scale distributors and growers," he said.

Raich could have a winning case if she were arrested, suggested Judge Beam. "I'd be amazed if the Supreme Court didn't think the evidence would carry the day," he said. "The problem is, we don't have standing in my view on this particular question."

It is Raich's rights under the 5th Amendment's due process clause and the 9th Amendment's protection of an individual's ability to make life-shaping decisions, preserve bodily integrity, avoid severe pain, and even stay alive that are the primary issue, Barnett responded. The federal government's enforcement of the drug laws in a manner that unduly burdens Raich must be found unconstitutional, he argued.

"Medical cannabis is necessary for the preservation of Angel Raich's life," said Barnett. "If she obeys the law, she will die."

There is no right to use drugs the government has banned, Quinlivan retorted, leading Judge Pregerson to challenge him. "Supposing that a patient faced unbearable suffering that could only be relieved by a pill that was on the government's black list, would not that patient have a right to use the drug?"

Well, no, Quinlivan responded. In the end, he said, it comes down to a determination by Congress, and Congress had determined that marijuana had no medical use. An adverse ruling would open the floodgates to "people who want to use other substances," he warned. When Judge Pregerson asked Quinlivan if was okay to just let Raich die, Quinlivan responded, "Congress has made that value judgment."

While oral arguments are not absolute predictors of forthcoming rulings, they are generally good indicators, and the indications are the 9th Circuit panel has serious questions about Raich's latest legal argument. However the 9th Circuit panel rules, the case is headed for the US Supreme Court, which has so far shown little indication it is prepared to rule favorably in a medical marijuana case. But it has not yet heard the arguments raised by Raich.

As for Angel Raich, she remains hopeful. "I fear for my health, my safety and my family, but I am confident that the 9th Circuit Court of Appeals will again agree that I am in every way acting in accordance with the law," she said. "I just want the opportunity to be a mother to my children without having to live in constant fear that the federal government will raid my home or throw me in jail simply for taking the medicine that treats my pain and keeps me alive."


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