Thursday, March 15, 2007

Sick decision

There's nothing in the Constitution giving the federal government the power to regulate what people put in their bodies -- it took a full-on constitutional amendment to authorize Prohibition -- but don't tell that to the courts. Yesterday, the the Ninth U.S. Circuit Court of Appeals ruled, in the case of Raich v. Gonzales (full PDF file available here) that the federal government could continue to prosecute medical marijuana patients in California, even though the state has legalized the use of the drug for medicinal purposes.

The plaintiff in the case, Angel Raich, suffers an array of ailments that together make for a painful life. Marijuana has so far proven to be the most effective medication available for treating her illnesses. As the court itself summarized:

Appellant Angel McClary Raich is a Californian who uses marijuana for medical treatment. Raich has been diagnosed with more than ten serious medical conditions, including an inoperable brain tumor, a seizure disorder, life-threatening weight loss, nausea, and several chronic pain disorders. Raich’s doctor, Dr. Frank Henry Lucido, testified that he had explored virtually every legal treatment alternative, and that all were either ineffective or resulted in intolerable side effects. Dr. Lucido provided a list of thirty-five medications that were unworkable because of their side effects.

Marijuana, on the other hand, has proven to be of great medical value for Raich. Raich has been using marijuana as a medication for nearly eight years, every two waking hours of every day. Dr. Lucido states that, for Raich, foregoing marijuana treatment may be fatal.

Raich's home state, California, like many other mostly western states, has opened the door to the cultivation, purchase and use of marijuana by people with a medical need. But the federal government claims that its harsh anti-drug laws supersede those of the states. The courts, so far, have agreed -- mostly because they are bound by Supreme court decisions that find federal authority to regulate purely intrastate dealings in substances like marijuana where the Constitution would seem to differ. The Ninth Circuit has actually been overruled on this matter.

Having earlier had her claims that the federal government has no authority to regulate trade in marijuana that crosses no state lines, Raich argued "claims based on common law necessity, fundamental rights protected
by the Fifth and Ninth Amendments, and rights reserved to the states under the Tenth Amendment. She also argues for the first time that the Controlled Substances Act, by its terms, does not prohibit her from possessing and using marijuana if permitted to do so under state law."

It's these arguments that the Ninth Circuit rejected in its ruling yesterday. The Ninth Circuit found that, although people do have a right to make fundamental choices, such as those involving personal sexual conduct, "the use of medical marijuana has not obtained the degree of recognition today that private sexual conduct had obtained by 2004 in Lawrence." The court went on to say:

We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law as well. 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."

Raich's Tenth Amendment claim was dismissed on the grounds that the Supreme Court had already ruled that marijuana regulation falls within the federal government's purview under the Commerce Clause, so it can't violate the Tenth Amendment.

The only glint of hope comes from the fact that the court didn't outright reject Raich's medical necessity claim; it just ruled that she'd have to be arrested before she could raise it, saying, "Though a necessity defense may be available in the context of a criminal prosecution, it does not follow that a court should prospectively enjoin enforcement of a statute." This leaves Angel Raich with the unpalatable prospect of risking prison in order to find out whether she'll be allowed to plead necessity as her reason for using marijuana in defiance of federal law. That's an unpleasant thing to ask of anybody, let alone a woman with debilitating illnesses. It does, however, hold out some promise for other people who happen to run afoul of federal law while using or dealing in marijuana for medical purposes.

Overall, the Raich decision was a blow not just against the medical marijuana movement, but also against federalism. It upholds a line of reasoning that allows the federal government to claim the authority to legislate and regulate anything and everything -- and leaves the states with little ground to be more lenient and experiment with alternative policies.

Medical marijuana might yet win as an issue -- if it can be pushed through Congress (a slim hope). But federalism is every bit as ailing a patient as is Angel Raich.

Labels:

0 Comments:

Post a Comment

Links to this post:

Create a Link

<< Home