Dying Woman Denied Right to Take Medical Marijuana

In Raich v. Gonzales, the Ninth Circuit Court of Appeals in San Francisco held yesterday that there is no fundamental right to take medical marijuana, even when it is recommended by a physician to save life, and even when other drugs have failed.

The case involved Angel McClary Raich, who uses marijuana on doctors’ advice to treat an inoperable brain tumor and several other serious and excruciatingly painful ailments. Ms. Raich explains that the drug keeps her alive by relieving unbearable pain and stimulating appetite in a way that prescription drugs do not. California state law permits the use of medical marijuana on a doctor’s advice, but federal law does not.

The court’s decision was wrong. Recognizing a fundamental right to obtain a potentially life-saving drug with one’s own funds should be no more controversial than other rights that the Supreme Court has recognized, like the right to bodily integrity (Rochin v. California), the right to attend a private school (Pierce v. Society of Sisters (1925)), the right to procreate (Skinner v. Oklahoma (1941)), and the right to marry (Loving v. Virginia (1967)).

Unlike those rights, which are not even hinted at in the text of the Constitution, a right to live is alluded to in the Due Process Clauses of the Constitution, which speak of a right to “life,” “liberty,” and “property.” A right to live certainly has far more textual support in the Constitution that the right to abortion recognized by the Supreme Court’s deeply-controversial abortion decisions.

Since even unenumerated fundamental rights are protected under long-standing Supreme Court precedent, and the right to life is expressly mentioned in the text of the due process clauses of the Constitution, the court should have recognized a fundamental right to access any drug (including marijuana) recommended by a physician to save life, when other drugs have failed, and a respectable minority of physicians believe that the drug is beneficial for treatment (as is the case with medical marijuana).

The Raich plaintiffs’ case was logically much stronger than that of the prevailing plaintiffs in the Supreme Court’s abortion decisions.

The case for a fundamental right by a patient to live is far stronger than for the right of a patient to get a third-trimester abortion to avert risks to her emotional or physical health, which is something that the Supreme Court’s abortion decisions already protect.

Although the federal appeals court rejected the constitutional argument for medical pot, it did recognize that the terminally-ill woman might have a common law defense of necessity to a criminal prosecution for using medical marijuana.

More importantly, it also suggested that the right to take medical marijuana might become “fundamental” enough to be protected by the Constitution in the future if more states join California in permitting medical use of marijuana, thus demonstrating an evolving societal consensus favoring access to potentially life-saving drugs.

The New York Times covers the case here.