Raich Still Fighting for Medi-Pot Rights

Raich vaporizing cannabis in the hospital, August 2003

Medical-marijuana patient, and its fiercest advocate, Angel Raich, was back in federal court on March 27, where her lawyers argued before a three-judge panel of the 9th U.S. Circuit Court of Appeals that the Constitution and the common-law doctrine of medical necessity protect Raich's use of medi-pot and make unconstitutional the federal government's attempts to enforce pot prohibition against sick and dying patients.

Raich, who suffers from a host of serious medical conditions – including an inoperable brain tumor and wasting syndrome – began using medi-pot in compliance with the 1996 California law that codified the practice after trying a host of pharmaceuticals that failed to control her symptoms – or that, in some cases, made those symptoms worse. After federal narcos stepped up raids on medi-mari dispensaries and users in California, Raich sued the feds, arguing that they had no right to interfere with her in-state, legal use of medi-pot. The feds countered that the Constitution's Commerce Clause authorized the raids as part of a scheme to maintain the prohibition on pot use outlined by the Controlled Substances Act, which reads, in part, that pot has no medically acceptable uses (a classification the feds have maintained in large part by simply ignoring the growing body of medical research that suggests otherwise.) Raich fought all the way to the U.S. Supreme Court, where many court watchers – mindful of the Court's recent legal interpretations deferring to state's rights in intrastate matters – thought Raich would prevail. But with Justice Antonin Scalia (usually a stalwart supporter of state sovereignty) defecting to the majority, the court ruled against Raich, opining that the feds may use the Commerce Clause to enforce the CSA in states that legalize and regulate medi-pot.

Still, the court did not contemplate any of the other legal questions raised by Raich's suit and sent the case back to the Ninth Circuit for further consideration. On March 27, Raich and her attorneys, Randy Barnett and Robert Raich, told the appeals court that the due process clause of the Fifth Amendment, the Ninth Amendment's granting to the people those rights not specifically identified in the Constitution, and the common-law doctrine of medical necessity prohibit the feds from using drug laws to ban Raich's state-sanctioned medi-pot use. The three-judge panel, however, wasn't sure that Raich could bring such a claim without first having been arrested or prosecuted for her medi-pot use – if she had been arrested, she would likely have a winning case, opined Judge Arlen Beam. "I'd be amazed if the Supreme Court didn't think the evidence would carry the day," he speculated. "The problem is, we don't have standing, in my view, on this particular issue." And, arguing on behalf of the feds, Assistant U.S. Attorney Mark Quinlivan told the panel that it would be "incredibly unlikely" that someone like Raich would be arrested solely because she is a patient – unless, he said, a patient was to "flaunt" his or her medi-pot use. Amazingly – and contrary to reports of ongoing raids on small-time medi-mari dispensaries, growers and users – Quinlivan told the judges that the feds are focused on busting "large-scale distributors and growers."

Still, Raich attorney Barnett told the judges that the real issue is that federal prohibition puts Raich's life in jeopardy and unconstitutionally threatens her ability to make "life-shaping" choices, to protect bodily integrity and, ultimately, to stay alive – arguments that necessarily give Raich legal standing before the court. In short, he said, "If she obeys the law, she will die." But there's no right for an individual to use any drug the government has banned, Quinlivan said – a contention that Judge Harry Pregerson quickly challenged: "Supposing … a patient faced an 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?" No, Quinlivan replied; the patient would not have any right to use a drug that Congress has banned; in explaining his answer, Quinlivan trotted out the age-old drug warrior's assertion that allowing any exceptions to the CSA ban on marijuana rule would only "open the floodgates" to others who want to use a host of other banned drugs.

So it is okay to allow Raich to die, Pregerson asked.

"Congress has made that judgment," Quinlivan responded.

Quinlivan's flippant attitude infuriates Raich, who points out that when it comes to protecting the right to live – which, she argues, is at the heart of her case – the judgments of Congress are cherry-picked and driven by politics – as in the case of Terry Schiavo or in the ongoing quest to restrict and control women's reproductive freedoms. "So, does this mean that my life is less important than a fetus?" she asks.

The ongoing fight over legalizing medi-mari – which challenges the feds' illogical drug classification scheme, and thus requires the fed lawyers to perform complicated mental gymnastics in order to build their prohibitionist arguments – angers Raich, who says she doesn't understand why the government won't simply let her live. For Raich, her access to and use of medi-pot is that fundamental: Without access, she would die. And getting herself arrested to ensure legal standing for her claims – as Judge Beam suggested – would likely hasten her death. "If I got arrested and they withheld my medicine, I'd die," she said in a recent phone interview. "So, if they want me to test their argument on 'standing' that's what I'd have to do. It makes me so angry because I don't feel like I should have to [put my life in jeopardy] to survive." Still, she says that if the appeal court rules against her, she may have to do just that. "If the [court] rules against me, I'm taking my gloves off, and you'll see an Angel Raich you haven't seen before," she said. "I want my freedom; I want to live."