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Raich v. Gonzales - 500 F.3d 850 (9th Cir. 2007)


Federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.


Plaintiff-Appellant Angel McClary Raich (Raich) is a seriously ill individual who uses marijuana for medical purposes on the recommendation of her physician. Such use is permitted under California law. The caregivers assisted Raich by growing marijuana for her treatment. The Controlled Substances Act (CSA) listed marijuana as a Schedule I controlled substance, under 21 U.S.C.S. § 812(c). California passed the Compassionate Use Act of 1996, Cal. Health & Safety Code § 11362.5, which permitted Californians to use marijuana for medical purposes. Raich and the caregivers sought declaratory and injunctive relief based on the alleged unconstitutionality of the CSA, and a declaration that medical necessity precludes enforcement of the CSA against them. On March 5, 2003, the district court denied their motion for a preliminary injunction.


Did the district court err by failing to protect Raich’s fundamental rights to use medical marijuana prescribed by a licensed physician?




The appellate court found that Raich had not demonstrated that she would likely succeed in obtaining injunctive relief. Although common law necessity prevented criminal liability as to Raich, it did not permit the court to enjoin prosecution for what remained a legally recognized harm. Legal recognition had not yet reached the point where a conclusion could be drawn that the right to use medical marijuana was "fundamental" and implicit in the concept of ordered liberty. Raich failed to demonstrate that the CSA violated the Tenth Amendment. The Court of Appeals for the Ninth Circuit declined to reach the argument that the CSA, by its terms, did not prohibit Raich’s possession and use of marijuana because it was not raised below.

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