December 17, 2004 - Associated Press

Federal Appeals Court Approves Medical Marijuana In Some Cases

Decision A Blow To Justice Department

SAN FRANCISCO (AP)- A federal appeals court ruled Tuesday that a congressional act outlawing marijuana may not apply to sick people with a doctor's recommendation in states that have approved medical marijuana laws.

The 9th U.S. Circuit Court of Appeals ruled 2-1 that prosecuting these medical marijuana users under a 1970 federal law is unconstitutional if the marijuana isn't sold, transported across state lines or used for non-medicinal purposes.

"The intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician is, in fact, different in kind from drug trafficking," Judge Harry Pregerson wrote for the majority.

The court added that "this limited use is clearly distinct from the broader illicit drug market, as well as any broader commercial market for medical marijuana, insofar as the medical marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce."

The decision was a blow to the Justice Department, which argued that medical marijuana laws in nine states were trumped by the Controlled Substances Act, which outlawed marijuana, heroin and a host of other drugs nationwide.

The Justice Department was not immediately available to comment on the ruling from a court some call the nation's most liberal appeals court.

Randy Barnett, a Boston University constitutional law professor, said the case was precedent setting.

"It's the first time there's been a ruling that the application of the Controlled Substances Act to the application of cultivation of medical cannabis is unconstitutional," he said.

The case concerned two seriously ill California women who sued Attorney General John Ashcroft. They asked for a court order letting them smoke, grow or obtain marijuana without fear of federal prosecution.

The case underscores the conflict between federal law and California's 1996 medical marijuana law, which allows people to grow, smoke or obtain marijuana for medical needs with a doctor's recommendation.

A U.S. district judge tossed the case in March, saying the Controlled Substances Act barred him from blocking any potential enforcement action against medical marijuana patients Angel Raich and Diane Monson. Tuesday's ruling sends the case back to U.S. District Judge Martin Jenkins, who was ordered to sign a preliminary injunction blocking federal drug action directed toward Raich and Monson.

While the women's case has yet to be tried, the court said the two "have demonstrated a strong likelihood of success on the merits."

Raich, a 38-year-old Oakland woman suffering from ailments including scoliosis, a brain tumor, chronic nausea, fatigue and pain, smokes marijuana every few hours. 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.

"I feel safe for the very first time ever since I've been a patient," Raich said of the ruling. "This is very triumphant not only for myself but for patients and caregivers across the country."

Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington state have laws similar to California's.