Ninth Circuit: No “Fundamental” Right To Use Pot To Ease Suffering

Pasadena, CA:  The physician approved use of cannabis to “preserve bodily integrity, avoid intolerable pain, and preserve life” is not a Constitutionally protected right, the Ninth US Circuit Court of Appeals ruled this week.

The ruling rejects an appeal by California patient Angel McClary-Raich, who sought injunctive relief from criminal prosecution for her use of cannabis in accordance with state law.  The United States Supreme Court in 2005 ordered the Ninth Circuit, on remand, to address McClary-Raich’s arguments that the federal enforcement of the Controlled Substances Act (CSA) in California violated her Constitutional liberties.

The Court opined that enforcement of the CSA did not violate plaintiff’s substantive due process.  “We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law,” the Court determined. “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.'”

The Court also rejected plaintiff’s contention that enforcement of the CSA infringes upon the sovereign police powers of the state of California.  

Although the Ninth Circuit did determine that McClary-Raich’s use of medicinal cannabis would likely qualify her to raise a defense of ‘medical necessity’ if prosecuted, it ruled that the “necessity defense does not provide a proper basis for injunctive relief.”

For more information, please contact Keith Stroup, NORML Legal Counsel, or Paul Armentano, NORML Senior Policy Analyst, at (202) 483-5500. Full text of the Ninth Circuit decision, “Angel McClary-Raich et al v. Alberto Gonzalez et al,” is available online at:$file/0315481.pdf?openelement.