Gonzales v Raich on Remand to 9th Cir - Historic Medical Cannabis by hcj


									Historic Medical Cannabis Case Back in Court. On Monday,
March 27, 2006, the U.S. Ninth Circuit Court of Appeals will
hear the new arguments in Raich v. Gonzales on Remand
from the United States Supreme Court.

                                                   Historic Medical Cannabis Case Back in Court. On
                                                   Monday, March 27, 2006, at 1:30 p.m. in Courtroom
   The Ninth Circuit Court of Appeals in Pasadena.
                                                   Three, at the Richard H. Chambers U.S. Ninth
Circuit Court of Appeals Building, 125 South Grand Avenue, Pasadena, California.
Each side is allotted thirty (30) minutes for arguments.

Prohibiting Angel Raich’s medical cannabis activities – which the undisputed evidence
establishes are necessary to save her from intolerable pain and death – would unduly
burden her fundamental rights and would thus violate the Fifth Amendment’s Due
Process Clause and the retained rights referred to in the Ninth Amendment.

The government does not attempt to refute Appellants’ showing that the Due Process
Clause and the Ninth Amendment protect not only the fundamental right to “life,” but
also the fundamental rights to make life-shaping decisions, preserve bodily integrity,
and avoid severe pain. Nor does it dispute that its prohibition of Angel’s medically
necessary activities must be ruled unconstitutional if this Court applies the undue
burden standard. Instead, it simply denies that any fundamental rights are at stake and
insists that mere rationality review applies. The government’s argument is untenable.

The government fails to cite Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme
Court’s most recent – and thus controlling – ruling on the substantive protections of the
Due Process Clause. As a result of this omission and its misunderstandings of the
Supreme Court’s other applicable opinions, the government characterizes Angel’s
fundamental rights far too narrowly and fails to engage in the historical analysis that the
Supreme Court’s precedents demand. The government compounds these errors by
relying heavily on plainly inapplicable cases involving attempts to obtain laetrile in
commerce as an elective treatment and persons seeking to select a healthcare provider
who fails to satisfy basic licensing requirements.

Before examining the numerous omissions and flawed premises underlying the
government’s argument for rationality review, an important inaccuracy that pervades the
government’s brief must be corrected. The government repeatedly asserts that Angel
seeks to use medical cannabis “free of the lawful exercise of the government’s police
power,” i.e., “free from government regulation.” E.g., Appellees’ Br. at 15, 17, 19-20, 26,
28-30. That is simply not true. Appellants have made it abundantly clear that Angel
challenges only the constitutionality of complete prohibition of her medical cannabis
use, and that she does not object to reasonable regulations of such use. See Opening
Br. at 9, 12-14.

The government also errs in dismissing the Ninth Amendment based on United Public
Workers v. Mitchell, 330 U.S. 75, 95-96 (1947). Appellees’ Br. at 33-34. Mitchell
unjustifiably collapsed the Ninth and Tenth Amendments, which were adopted to
address different problems. See Randy E. Barnett, Restoring the Lost Constitution: The
Presumption of Liberty 234-52 (2004). Mitchell has been superseded by more recent
cases – which the government fails to cite – in which the Supreme Court has expressly
relied on the Ninth Amendment to support its recognition of unenumerated rights. See
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 848 (1992) (citing
Ninth Amendment as textual support for holding); Richmond Newspapers v. Virginia,
448 U.S. 555, 579 & n.15 (1980) (“the Ninth Amendment” supports “recognition of
important rights not enumerated”); Griswold v. Connecticut, 381 U.S. 479, 484 (1965)
(“[t]he Ninth Amendment” supports “the right of privacy”). In any event, Appellants
invoke the Ninth Amendment not because it alters the Supreme Court’s Due Process
Clause jurisprudence, but rather because it provides strong textual and historical
support for that jurisprudence.

To read the briefs from the Ninth Circuit Court of Appeals on Remand from the Supreme
Court click here. To read all the briefs filed to date in this case click here.

“Doctors, not the federal government know what’s best for their patients,” said Randy
Barnett, a professor of law at Boston University and a member of Raich’s legal team. “If
a state decides to allow doctors to recommend proven treatments for their patients, then
the federal government has no rightful place in the doctor’s office.”

“This case implicates perhaps the most fundamental right of all, the right to preserve
one’s life,” said Robert Raich, a member of Angel Raich’s legal team. “It also implicates
the fundamental right to alleviate unnecessary pain and agony and protect bodily

 “I fear for my health, my safety and my family, but I am confident that the Ninth Circuit
Court of Appeals will again agree that I am in every way acting in accordance with the
law,” said Angel Raich of Oakland. “I just want the opportunity to be a mother to my
children without having to live in constant fear that the federal government will raid my
home or throw me in jail simply for taking the medicine that treats my pain and keeps
me alive.”

To read the Supreme Court ruling in Alberto R. Gonzales, et al. v. Angel McClary
Raich, et al., click here. To read the Raich Decision Press Release, click here.

Things you should know about the Supreme Courts Decision in Ashcroft v.

STATEMENT FROM ANGEL RAICH, lead plaintiff in Gonzales v. Raich:

I'm in this battle literally for my life. So while the Supreme Court ruling is
disappointing, my battle - the battle I share with thousands of medical
cannabis patients across the country - is far from over.

In its decision, the Supreme Court made it clear that the ball is now in
Congress's court. Justice Stevens wrote in the decision that Congress can
change the law to allow medical use of cannabis as medicine. Congress also
has the authority to stop federal raids on sick and dying patients. While the
decision is disappointing, the timing is fortunate because next week, the
House of Representatives will vote on medical cannabis legislation that would
do just that.

The U.S. Supreme Court puts the medical marijuana issue in
Congress' court ... Click here!

      This case, first and foremost, is about granting sick and dying patients the
       right to a medicine that has proven medical benefits supported by
       government studies and health care professionals.
      We have much to gain and little to lose in Ashcroft v. Raich. The single
       most important thing to understand is that state and local laws on the
       books protecting medical cannabis patients and their doctors will continue
       to stand and are not at all affected by this ruling.
      The Attorney General and the federal government now have a choice: They
       can choose to continue wasting taxpayers’ dollars raiding the homes of
       sick and dying patients—suffering from diseases like cancer, chronic pain,
       leukemia, multiple sclerosis and AIDS—who are abiding by state and local
       laws, or they can choose more worthwhile priorities, like national security
       or arresting terrorists. The federal government should not compound the
       suffering of sick and dying patients.
      An overwhelming majority of Americans agree with us. In fact, 80% of the
       Americans are in favor of patients having access to medical cannabis if
       that is what their doctors recommend, according to a recent TIME/CNN poll.
       This is not a divisive red state/blue state issue. In fact, 4our states with
       medical cannabis laws on the books are red: Colorado, Nevada, Montana
       and Alaska.
      Overwhelming support for more common sense medical cannabis laws,
       most recently in Montana, Ann Arbor MI, and Columbia MO further point to
       growing public support for cannabis as legitimate medicine and the
       compassion most Americans have for severely ill people who rely on
       cannabis to alleviate their suffering.
      Doctors, not the federal government, know what’s best for their patients.
       Who would you rather have overseeing your health? Your doctor or a
       federal agent from Washington, DC?
      Federalism isn’t just for conservatives. This case is about enabling states
       to advance social policies beyond the reach of Congress that help
       extremely sick patients live with their illnesses.
      Something must be done now to protect sick and dying patients in
       accessing the medicine that helps them lead a healthier and less painful
      The federal government does not have the right to interfere if a state
       decides to allow doctors to recommend proven treatments for their
       patients. This is a federalism issue, and the federal government has no
       business poking its nose into it.
      To date, the federal government has ignored conclusive scientific data—
       even from their own studies—about the effectiveness of medical cannabis.
       Clearly the federal government is playing politics with patients’ lives,
       choosing to ignore scientific fact.
      The federal government should not interfere between a patient and her
       doctor’s decision to recommend the medicine that best treats the patient’s
      Angel’s doctors have tried regular pharmaceutical treatments and they
       have failed. In fact, they have made her sicker. Medical cannabis has
       worked. She can walk again, hug her children again, live her life again. If
       the federal government is allowed to interfere and stop her from getting the
       medical cannabis she needs, it is in effect condemning her to death.

      People who suffer from chronic pain, leukemia, cancer, multiple sclerosis
       and other life-threatening illnesses should not have to live in fear of being
       arrested for taking the medicine they need to survive—medicine their
       doctors are recommending for them.

Check out the Raich Supreme Court photo gallery along with our other
photo galleries.

November 29, 2004. Raich Supreme Court Transcript

November 29, 2004 at 10:00 am. The United States Supreme Court will hear the
Ashcroft v. Raich medical cannabis case in Washington D.C. June 28, 2004 The New
York Times was quoted saying, "The case, certain to be one of the most closely
watched of the court's next term."
June 28, 2004. Opening up an important window of opportunity for medical cannabis
patients and their caregivers, the United States Supreme Court will review the Ninth
Circuit Court of Appeals’ December 16, 2003 ruling in Ashcroft v. Raich. The case,
scheduled before the high court on November 29, 2004 will set a national precedent by
weighing whether or not patients have the legal right to treat their illnesses by
medicating with cannabis when recommended by their doctors.

Be sure to check out all of our Supreme Court briefs and all of the
friends of the court amicus briefs. They will prove there is medical
evidence to support the use of medical cannabis and how the
government has at every turn tried to prevent research.

We have support from Constitional Law Scholars, the Institute for
Justice, three states that support the use of medical cannabis, and we
have support from three concervative states that support federalism.
Very interesting reading!

If you would like to read or download the pleadings in the Raich v.
Ashcroft case go to our court documents page at
http://www.angeljustice.org/article.php?list=type&type=11. All of the
Supreme Court briefs are at the bottom of this page.

The Raich v. Ashcroft Decision

On May 14,2004. District Court Judge Martin J. Jenkins grants preliminary injunction
against the federal government. The Court having considered all the pleadings filed in
this matter, the argument made by counsel, and for good cause having been shown,
Plaintiffs' Motion for Preliminary Injunction is GRANTED.

In Raich v. Ashcroft, 352 Fed. 3d 1222 (9th Cir. 2003), the United State Court of
Appeals for the Ninth District held that the Plaintiffs' have demonstrated a stron
likeihood that "as applied to them, the [Controlled Substances Act] is an unconstitutional
exercise of Congress' Commerce Clause authority." Id. at 1227. Accordingly,

IT IS HEREBY ORDERED THAT, during the pendency of this action Defenants and
their agents and officers, and any person acting in consort wit them, are hereby
enjoined from arresting or prosecuting Plaintiffs Angel McClary Raich and Diane
Monson, siezing their medical cannabis, forfeiting their property, or seeking civil or
administrative sanctions against them with respect to the intrastate, noncommercial
cultivation, possession, use, and obtaining without charge of cannabis for personal
medical purposes on the advice of a phycician and in accordance with state law, and
which is not used for distribution, sale or exchange; and

Read more of the Raich preliminary injunction
On December 16, 2003. The Ninth Circuit Court of Appeals issued an opinion reversing
and remanding the case Raich v. Ashcroft to the district court with instructions to enter a
preliminary injunction, as sought by the patients and caregivers. The Court found that
“the appellants have demonstrated a strong likelihood of success on their claim that, as
applied to them, the CSA [Controlled Substances Act of 1970] is an unconstitutional
exercise of Congress’ Commerce Clause authority.”

"People shouldn't panic. There aren't going to be many changes.
Nothing is different today than it was two days ago, in terms of real-
world impact."
-- California Attorney General Bill Lockyer, after the decision was issued.

On November 29, 2004, the U.S. Supreme Court Heard this landmark
Medical Cannabis Case Involving the Federal Government’s Persecution
of Severely ill Patients and Caregivers.

The United States Supreme Court reviewed the December 16, 2003,
Ninth Circuit Court of Appeals’ ruling in Raich v. Ashcroft to decide
whether the Controlled Substances Act of 1970 is unconstitutional as it
applies to a patient’s or caregiver’s right to cultivate and possess
cannabis to treat medical conditions as recommended by the patient’s

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