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By DAVID KRAVETS | Associated Press
March 23, 2006

SAN FRANCISCO (AP) - Each time the U.S. Supreme Court has ruled on medical marijuana, the justices have come down against allowing the sick and dying to use the drug to ease their symptoms and possibly prolong life. But the door has never been fully closed.

This week, a federal appeals court in California will hear arguments in the latest round of legal wrangling over the issue.

The case to be argued before the 9th U.S. Circuit Court of Appeals on Monday narrows the matter to the so-called right to life theory: that marijuana should be allowed if it is the only viable option to keep a patient alive or free of excruciating pain.

It would apply only to the sickest patients and their suppliers, regardless of whether they live in one of the 11 mostly Western states authorizing medical marijuana.

"A victory would affect people who are very seriously ill, facing death or great physical suffering," said Randy Barnett, a Boston University law school professor working on the case.

The case was brought by Angel Raich, a 40-year-old mother of two from Oakland who suffers from scoliosis, a brain tumor, chronic nausea and other ailments. She uses marijuana every couple of hours to ease her pain and bolster a nonexistent appetite.

"She'd probably be dead without marijuana," said her doctor, Frank Lucido, who has recommended marijuana for some 3,000 patients. "Nothing else works."

The Bush administration says the lawsuit is without merit.

"There is no fundamental right to distribute, cultivate or possess marijuana," Assistant U.S. Attorney Mark Quinlivan, the government's lead medical marijuana attorney, wrote to the appeals court.

Voters in 1996 made California the first state to authorize patients to use marijuana with a doctor's recommendation. Ten other states have since followed suit, but the federal government says there is no medical value to the drug.

In 2001, the Supreme Court ruled that Raich's supplier, the Oakland Cannabis Buyer's Cooperative, could not lawfully dispense marijuana despite California voters approving its medical use.

Two years later, in a small victory for medical marijuana backers, the high court let stand a 9th Circuit decision saying doctors have a First Amendment right to discuss or recommend the drug to patients without the threat of federal sanctions.

But last June, the Supreme Court ruled the federal government could prosecute medical marijuana users and their suppliers.

In some states, federal agents have been sporadically arresting users and raiding so-called pot clubs that dole out the drug to patients.

Still, a footnote by Justice Clarence Thomas in his 2001 ruling left the legal questions surrounding medical marijuana unsettled and helped open the door to Monday's 9th Circuit hearing.

Thomas wrote that important underlying constitutional questions remain unresolved, such as Congress' ability to interfere with states experimenting with their own laws and whether Americans have a fundamental right to marijuana as a vehicle to stay alive and ease pain.

The justices answered the first part of that footnote in June, ruling in another case brought by Raich that patients living in states with medical marijuana laws could be prosecuted because Congress has classified marijuana as an illegal controlled substance.

That prompted Reps. Dana Rohrabacher, R-Calif., and Maurice Hinchey, D-N.Y., to propose legislation that would have blocked the Justice Department from prosecuting medical marijuana users in states where it is legal. The House balked at the measure 264-161. A Hinchey spokesman said the congressman will resurrect the proposal this summer.

Raich is back before the 9th Circuit, one step short of the Supreme Court, in a bid to settle the second part of Thomas' footnote.

Her lawyer, Barnett, is arguing the Constitution guarantees the gravely ill a right to available medication to keep them alive and relieve torturous pain.

Even if it is successful, the case would be unlikely to stop the raids on pot clubs or protect most users and suppliers. Raich herself was arrested last week for disorderly conduct after she demonstrated outside the Oakland federal courthouse over a recent raid on a medical marijuana dispensary.

Regardless of the outcome of her case, she said she will continue using marijuana to treat her symptoms, and will keep fighting to do so without the threat or fear of federal prosecution. She expects her case to go to the Supreme Court no matter the outcome.

"I am going to keep doing this until they stop me because this is not a medical cannabis case but a right to life case," she said. "The federal government can say who can live and who can die if I lose in the Supreme Court."

The case is Raich v. Gonzales, 03-15481.

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