Dying Woman Loses Appeal on Marijuana as Medication
By JESSE McKINLEY
Published: March 15, 2007
SAN FRANCISCO, March 14 — Federal appellate judges here ruled Wednesday that
a terminally ill woman using marijuana was not immune to federal prosecution
simply because of her condition, and in a separate case a federal judge
dismissed most of the charges against a prominent advocate for the medicinal
use of the drug.
The woman, Angel McClary Raich, says she uses marijuana on doctors’
recommendation to treat an inoperable brain tumor and a battery of other
serious ailments. Ms. Raich, 41, asserts that the drug effectively keeps her
alive, by stimulating appetite and relieving pain, in a way that
prescription drugs do not.
She wept when she heard the decision.
“It’s not every day in this country that someone’s right to life is taken
from them,” said Ms. Raich, appearing frail during a news conference in
Oakland, where she lives. “Today you are looking at someone who really is
In 2002, she and three other plaintiffs sued the government, seeking relief
from federal laws outlawing marijuana. The case made its way to the Supreme
Court, and in 2005, the court ruled against Ms. Raich, finding that the
federal government had the authority to prohibit and prosecute the
possession and use of marijuana for medical purposes. But the justices left
elements of Ms. Raich’s case to a lower court to consider.
On Wednesday, a three-judge panel of the United States Court of Appeals for
the Ninth Circuit found that while they sympathized with Ms. Raich’s plight
and had seen “uncontroverted evidence” that she needed marijuana to survive,
she lacked the legal grounds to exempt herself from federal law.
The court “recognizes the use of marijuana for medical purposes is gaining
traction,” the decision read. “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.’ ”
Eleven states have medical marijuana laws on the books, and the New Mexico
Legislature is poised to approve a medical marijuana bill there, with the
support of Gov. Bill Richardson. Medical-marijuana advocates estimate more
than 100,000 Americans use the drug to treat medical conditions.
California was the first state to legalize medical marijuana, in a 1996
ballot measure, Proposition 215. That measure set off a decade-long fight
over a variety of legal issues surrounding marijuana, including state rights
and “common law necessity” defenses like the one Ms. Raich was trying to
Graham Boyd, director of the Drug Law Reform Project of the American Civil
Liberties Union, which has an unrelated medical marijuana case pending
before a federal judge in San Jose, said the decision in Ms. Raich’s case
was a setback for the movement but not a crippling one.
“Today is just one chapter in a story that is still not over,” Mr. Boyd said
Robert Raich, Ms. Raich’s husband and lawyer, said she might appeal the case
to the full Ninth Circuit. In the other ruling on Wednesday, a judge in
United States District Court here handed a victory to the marijuana
advocate, Ed Rosenthal.
Mr. Rosenthal, 62, said federal prosecutors had unfairly made him a target
with an array of drug, money-laundering and tax-evasion charges, many of
which closely mirrored charges he was convicted of in 2003, when he was
growing medical marijuana under California’s law at a dispensary in Oakland.
That conviction was overturned last year by a federal appeals court, which
found evidence of jury misconduct.
Mr. Rosenthal had asked the judge, Charles R. Breyer, for a dismissal at a
hearing this month, suggesting that the prosecution was vindictive. On
Wednesday, Mr. Breyer obliged in part, dismissing the charges of money
laundering and tax evasion, but leaving the marijuana charges in place. And
while Mr. Breyer said that he believed the prosecutors had acted in good
faith, that nonetheless “the presumption of vindictiveness has not been
Joseph Elford, a lawyer for Mr. Rosenthal, said the case had been “a
tremendous waste of taxpayer resources.”
Carolyn Marshall contributed from Oakland, Calif.