Medical Marijuana Victories

While the federal government continues to insist that marijuana is not a medicine, the medical marijuana movement has been pushing back -- scoring a recent string of legal victories that will make 2004 a pivotal year for patients and their caregivers.

The latest blow against the federal drug warriors came last week when medical cannabis patient Angel McClary Raich received word that the Ninth U.S. Circuit Court of Appeals had rejected the government's petition for a review of its ruling protecting medical cannabis patients. A three-judge panel of the appellate court decided last December in Raich v. Ashcroft that the arrest and prosecution of medical cannabis patients is unconstitutional as long as they obtain their marijuana without purchasing it or crossing state lines -- and if they use the plant medicinally in compliance with state law.

"It makes me feel really good to know that the Ninth Circuit Court of Appeals has joined the eighty percent of Americans who feel that cannabis is a legitimate medicine," says Raich pointing the November 2002 Time Magazine poll which found overwhelming support for medical marijuana.

The ruling was initiated by a 2002 lawsuit filed by Raich and fellow cannabis patient Diane Monson, whose medical marijuana garden was destroyed by federal agents. The women sought an injunction against the raids, which the Drug Enforcement Administration has been carrying out for seven years against California medical cannabis dispensaries, patients and their caregivers. "That was very scary for me," says Raich who has an inoperable brain tumor and says she needs cannabis to stay alive. "I had to protect myself and other patients."

The U.S. Justice Department attempted to reverse the decision by petitioning the federal appeals court for an "en banc" review by 11 judges. But the judges stood unanimously behind their decision. The final ruling became effective immediately in the seven states within the Ninth Circuit's jurisdiction that have medical cannabis laws. They include Alaska, Arizona, California, Hawaii, Nevada, Oregon and Washington. The Justice Department has 90 days to appeal the ruling to the U.S. Supreme Court. "We have not made any determination what the next step will be," says Department of Justice spokesperson Charles Miller who declined to comment on the Ninth Circuit decision.

Raich, a frail and determined mother of two, took part in the last Supreme Court decision on medical cannabis. Back in 2001, she was one of the fourteen medical cannabis patients cited by the Oakland Cannabis Buyers' Cooperative (OCBC) in its request for a "medical necessity" exemption to federal drug laws. The court struck down the medical necessity argument and ordered a permanent injunction against the cooperative's distribution of medical cannabis. But judges did not consider the constitutional questions surrounding the government's power to apply federal drug laws to the medical marijuana patients themselves.

Raich v. Ashcroft could well be the case in which the Supreme Court finally addresses these issues. The Ninth Circuit based the Raich v. Ashcroft decision on an interpretation of the Commerce Clause, which gives the government the power to control interstate commerce. Since the medical marijuana in question was used only in state and was not for sale, the court ruled that the federal government had no jurisdiction. Activists are encouraged by the fact that the Supreme Court's conservative majority has already made several rulings restricting federal powers to interstate commerce.

Last year, the Supreme Court also let stand another Ninth Circuit decision that barred the federal government from punishing physicians who recommended medical marijuana to patients. Supreme Court justices declined to hear the case of Conant v. Walters, in which a group of California doctors and patients sued on First Amendment grounds after the federal government threatened to revoke the DEA licenses of physicians who recommend cannabis.