Ninth Circuit Asks Probing Questions at Raich Hearing

By Dale Gieringer

PASADENA, Mar. 27th – A Ninth Circuit panel asked probing questions about Angel Raich’s appeal for a federal injunction to protect her use of medical marijuana. Her attorney, Prof. Randy Barnett, emphasized that the case was about Angel’s “fundamental right to life,” since the uncontested record showed that she suffered severe, life-threatening medical problems that had proven intractable to all other treatments except marijuana. Barnett argued that her right to use marijuana was accordingly constitutionally protected under the 5th & 9th amendments, as well as by the common law doctrine of medical necessity.

Justice Arlen Beam, who had been in the minority of the panel’s prior 2-1 ruling for Raich, which was subsequently overturned by the Supreme Court, immediately posed a critical question about Raich’s standing in the case, namely whether she had ever been prosecuted or threatened with prosecution. He noted that Diane Monson, who had been a co-defendant in the first case and who had in fact been raided by the DEA, was no longer in the case; and that in any event she had never been prosecuted, but had only had her medicine seized. Justices Paez & Pregerson chimed in, asking if other patients had been prosecuted for possession of medical marijuana. Barnett hemmed and hawed, saying that he couldn’t name any other patients who had been prosecuted, but would provide a list. (The California NORML website lists dozens of federal 215 prosecutions , but virtually all of them involve manufacture for others, not simple possession).

Beam went on to note that amicus briefs from MPP and MAPS indicated there was a need for more research on medical marijuana, implying that there existed substantial disagreement about marijuana’s medical benefits, and thus undercutting Raich’s claim.

Pregerson questioned whether Angel’s claim of a medical necessity defense was applicable in the absence of a criminal prosecution. He expressed concern that the court’s prior OCBC decision had precluded a necessity defense for medical marijuana. Barnett replied that the OCBC decision was applicable only to third-party providers, and that the court’s justices had been split on whether it applied to individual patients.

Barnett pointed out that his client’s essential claim involved the right to life, not medical necessity. Justice Beam suggested that Raich’s claim was precluded by previous decisions where the courts had ruled that patients did not have a right to the (quack) anti-cancer drug laetrile. Barnett replied that the right to life had never been explicitly raised in the laetrile cases.

US Attorney Mark Quinlivan argued that Raich’s claim to a fundamental right to life was derived from decisions protecting a woman’s right to abortion and were thus inapplicable to drugs. He stressed that the 9th Circuit’s Carnohan decision regarding laetrile ruled out any right for patients to use government-unapproved drugs.

Pregerson questioned this logic: 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?

Quinlivan hemmed and hawed, finally saying that it would be up to Congress’ determination, and that in this case Congress had determined that marijuana was not allowable.

Quinlivan went on to claim erroneously that government regulation of marijuana dated back to the Harrison Act of 1914 (in fact, marijuana was first regulated by the Marihuana Tax Act of 1937). Pregerson noted that medical use of marijuana had been legal up until passage of the Controlled Substances Act of 1970. He joked that he had gone to high school in East LA at a time when marijuana use wasn’t illegal, and “as a consequence of that, no one ever used it.”

Quinlvian said there was no long-standing tradition of using drugs, but Pregerson pointed out that laudanum had been used for “years and years” in the days of Sherlock Holmes and Queen Victoria. Quinlivan had never heard of laudanum (an opium tincture that was a popular household analgesic), and professed not to know about the history of drugs.

Quinlivan warned that if Raich prevailed, much of the New Deal legislation would have to be thrown out. “That won’t happen,” scoffed Pregerson.

Paez asked if it was possible that Raich would be prosecuted. Qunlivan replied that it would be “incredibly unlikely,” since the DEA was interested in large scale manufacture. However, he refused to offer any guarantees of amnesty, especially if patients flaunted their use in public.

Beam ventured that Angel would have a winning case IF she were in a criminal prosecution and presented a medical necessity defense to a jury. “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.”

In a closing response, Barnett was asked how, if the court ruled for Raich, the use of marijuana could be properly restricted. Barnett emphasized that his client was fully willing to concede extensive government regulation, including possible medical interviews to determine whether marijuana was really necessary, and whether the patient had tried other alternative treatments. He proposed that patients could present evidence at a civil trial, or alternatively, that the government set up a new regulatory system or reclassify marijuana in schedule 2.

The hearing closed with no easy answers from either side. However the court decides, further litigation is certain.