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Medical Marijuana Loses Again
10 March 2003 - by DAVID KRAVETS

SAN FRANCISCO - A federal judge has refused to block the U.S. government from potentially prosecuting two pot-smoking women whose doctors say marijuana is their only medical solace.

In the first case of its kind, two California medical marijuana users sued Attorney General John Ashcroft, seeking a court order allowing them to smoke, grow or obtain marijuana without threat or fear of federal prosecution.

The case underscores the conflict between California's medical marijuana law, which allows people to grow, smoke or obtain marijuana for medical needs, and the federal government's refusal to acknowledge the state's 1996 voter-approved initiative approving such acts.

The lawsuit opens a Pandora's box of legal questions that could reach the U.S. Supreme Court, whose justices may not have written the final word on the topic.

One of the ill women seeking the court order against the government was Angel Raich, a 37-year-old Oakland woman suffering from a variety of ailments, including scoliosis, a brain tumor, chronic nausea, fatigue and pain. She said she was partially paralyzed on the right side of her body until she started smoking marijuana.

She and her doctor say marijuana is the only drug that helps her pain and keeps her eating to stay alive.

She vowed to take her case to the 9th U.S. Circuit Court of Appeals and possibly to the Supreme Court. She said she will continue smoking marijuana.

"I am not a criminal. I am just somebody who is really, really ill and sick," she said. "I'm not going to stop. I'm not willing to die."

The Justice Department declined comment on whether it would arrest Raich, who says she often smokes marijuana to muster the strength to get out of bed.

U.S. District Judge Martin Jenkins said he was sympathetic to the womens' plight, but ruled federal law and the Food and Drug Administration, which does not recognize marijuana as a lawful drug, handcuffed him from issuing the injunction against the Justice Department.

"Despite the gravity of plaintiffs' need for medical cannabis, and despite the concrete interest of California to provide it for individuals like them, the court is constrained from granting their request," Jenkins wrote in a ruling that became public Monday.

Raich's attorney and husband, Robert Raich, said they filed the case and exposed themselves to potential criminal sanctions because the federal government, which says there are no medical uses for marijuana, has been raiding medical marijuana providers throughout California. He feared his wife's marijuana provider would be caught in the dragnet, and that his wife might be unable to find marijuana.

Robert Raich is the same lawyer who lost the original medical marijuana case before the Supreme Court nearly two years ago, said he is "laying the framework to get to the Supreme Court again."

In May 2001, the Supreme Court said that pot clubs could not dole out medical marijuana based on a so-called "medical necessity" need of patients, even if they have a doctor's recommendation to use marijuana.

Justice Clarence Thomas wrote that an Oakland pot club could not defend its actions against federal drug laws by declaring it was dispensing marijuana to the medically needy.

But the justices said they addressed only the issue of a so-called "medical necessity defense" being at odds with a 1970 federal law that marijuana, like heroin and LSD, has no medical benefits and cannot be dispensed or prescribed by doctors.

Thomas wrote that important and unresolved constitutional questions remained, such as Congress' ability to interfere with intrastate commerce, the right of states to experiment with their own laws and whether Americans have a fundamental right to marijuana as an avenue to be free of pain. Justice Thomas wrote that the court would not decide those "underlying constitutional issues today."

The other woman in the case, Diane Monson, 44, of Oroville, grows and smokes her own marijuana for chronic back problems and has already been raided once by the Drug Enforcement Administration.

She said the court's decision won't stop her from using and growing marijuana.

"I'm pretty outraged," she said.

The case is Raich v. Ashcroft, 02-4872.

Editors: David Kravets has been covering state and federal courts for a decade.

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