In a ruling issued this morning, the Ninth Circuit rejected our Due Process Clause and medical necessity claims. The opinion is here. I will have more comment on this later, but there are three hopeful aspects of its opinion. First, the panel went out of its way to suggest that Angel appears to qualify for a medical necessity defense should she be prosecuted criminally.

Although Raich appears to satisfy the factual predicate for a necessity defense, it is not clear whether the Supreme Court's decision in United States v. Oakland Cannabis Buyers' Cooperative forecloses a necessity defense to a prosecution of a seriously ill defendant under the Controlled Substances Act. 532 U.S. 483, 484 n.7 (2001). Similarly, whether the Controlled Substances Act encompasses a legislative "determination of values," id. at 491, that would preclude a necessity defense is also an unanswered question. These are difficult issues, and in light of our conclusion below that Raich's necessity claim is best resolved within the context of a specific prosecution under the Controlled Substances Act, where the issue would be fully joined, we do not attempt to answer them here.

Second, it maintained that if more states were to recognize a right to use cannabis for medical purposes, the Due Process Clause right asserted in this case (as it narrowly defines it) could be recognized as fundamental under the "emerging awareness" approach in Lawrence:

We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law as well. But that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is "fundamental" and "implicit in the concept of ordered liberty." See Glucksberg, 521 U.S. at 720-21 (citations omitted). For the time being, this issue remains in "the arena of public debate and legislative action." Id. at 720; see also Gonzales v. Raich, 125 S. Ct. at 2215.

As stated above, Justice Anthony Kennedy told us that "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress." Lawrence, 539 U.S. at 579. For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.

Finally, the Court did not rule on our statutory interpretation claim because it had been raised too late in the procedings and was therefore waived.

The first two of these rulings by the Ninth Circuit were far more than an otherwise losing party had any right to expect.

Update: I will be discussing today's decision with Al Rantel tonight on KABC Talk Radio 780AM in Los Angeles at 9:05ET/6:05PT 11:05PM ET/8:05PM PT. You can listen on-line here.