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Court rules against Oakland woman with brain tumor

SFGate.com

Oakland, CA Mar 14, 2007 -- A federal appeals court ruled today that an Oakland woman who says she smokes marijuana to help her deal with a brain tumor and other maladies has no right to claim medical necessity to avoid possible prosecution under federal drug laws.

Angel Raich, 41, had filed suit challenging the constitutionality of the federal Controlled Substances Act, arguing that her marijuana use was protected by the Constitution's Fifth, Ninth, and Tenth amendments.

Raich said she has a fundamental liberty to take the only medication that allows her to avoid intolerable pain and death, and that prohibiting her from taking medically necessary marijuana would violate the due process clause.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco ruled against her today, upholding a lower court judge's decision.

Raich and another woman, Diane Monson, sued then-U.S. Attorney General John Ashcroft in 2002, asking for a court order to let them smoke, grow or obtain marijuana without fear of arrest, home raids or other intrusion by federal authorities.

Raich and Monson, who has since dropped out of the case, asserted that the Controlled Substances Act does not allow the federal government to prohibit medical use within a state that authorizes it, as California does under Proposition 215, which voters approved in 1996.

In 2005, in a precedent-setting case, the U.S. Supreme Court ruled against the women on that claim and found that laws such as Prop. 215 did not prevent authorities from enforcing federal anti-drug laws. It sent other issues in the case back to lower courts for further review.

In today's ruling, Judge Harry Pregerson wrote that "although changes in state law reveal a clear trend toward the protection of medical marijuana use, we hold that the asserted right has not yet gained the traction on a national scale to be deemed fundamental."

Raich says she smokes marijuana every two hours -- about 9 pounds a year -- to fuel her appetite and help her cope with severe weight loss and chronic pain in addition to her brain tumor.

At a news conference this afternoon, Raich said she was "shocked" by the ruling but added, "I'm not done fighting.

"I don't want that coffin, but from this point on I am walking dead," she said. "I will continue to use cannabis. I will continue to smoke cannabis. ... This is real medicine and the federal government cannot tell us any differently."

Her husband and attorney, Robert Raich, said she would appeal the ruling, either to the full 9th Circuit or to the Supreme Court.