Ninth Circuit Rules in Raich Case:
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.
The first two of these rulings by the Ninth Circuit were far more than an otherwise losing party had any right to expect.
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.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.
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.
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.
Related Posts (on one page):
- Dorf on Raich:
- Raich and Scrutiny Land:
- Ninth Circuit Rules in Raich Case:
The Raich plaintiffs' case was logically much stronger than that of the prevailing plaintiffs in the Supreme Court's past abortion decisions.
The case for a fundamental right by a patient to live is far stronger than for the right of a patient to get a third-trimester abortion merely to avert modest risks to her emotional or physical health.
Well, sure, but there's hardly a fundamental right to a third-trimester abortion where there's a "modest risk to emotional health." That's just a strawman erected in order to justify having no health exceptions whatsoever.
The point is moot, at any rate, because the issue here is not health but life. Personally, I like the framing of "medical self-defense" even more than "medical necessity." The only consolation is that the result, while tragic for this plaintiff, may succeed in attracting further attention to a genuine injustice.
So, a coalition of states can effectively annul an otherwise valid federal law by creating a new "fundamental" constitutional right where none existed before, under an "emerging awareness" theory? Further evidence, and I say this as a proud liberal, that Lawrence is a train wreck of an opinion.
Maybe so, but it's a train wreck that expands individual liberty and, at least, mildly reduces the power of the federal government. IMO, it is far better than the number of judicial train wrecks in US history that have done the opposite.
No, it's a reality created by court rulings that a doctor's decision that an abortion is medically necessary can't be reviewed, unlike any other medical procedurefreeing doctors to declare abortions medically necessary for even the most frivolous reasons without any worry that the determination might be reversed, or that there might be any consequence from doing so.
The reason for the unreviewability exception should be self-evident. Decisions involving reproductive autonomy are subject to veto at almost every logistical phase. Even though the morning after pill is legal, certain medical care centers in Houston refuse to administer it.
To the extent the "nonreviewability" of the decision involves a judgment about the reviewing party's objectivity, it's not unjustifiable.
yeah, a surge in demand for pizza and the grateful dead.
even worse altogether, under the emerging awareness doctrine five judges get to decide whether enough states have joined the bandwagon to declare a new fundamental right. and i thought we lived in a republican democracy where there people were sovereign.
lastly, Glucksberg seems to limit the emerging awareness doctrine somewhat, don't you think?
-Is the concept of "bodily integrity" not inherent in the idea of self defense?
-Is the suffering of a crime victim any less "intimate and personal" than that of a woman forced to suffer the indignity of carrying an unwanted pregnancy?
-Is the ownership of firearms and their use in self defense not “deeply rooted in this Nation’s history and tradition?”
-This court asks "...whether the liberty interest specially protected by the Due Process Clause embraces a right to make a life-shaping decision..." Hmm, like choosing to carry a firearm for protection when you live in a bad neighborhood?
Would carrying a firearm for self defense have a better chance of protection as an unenumerated right than as an enumerated one?
What are you saying?
no doubt that according to Glucksberg the right to bear arms would be an unenumerated right cognizable via the due process clause (substantive that is)
-enumerated rights should be protected at least as strongly as unenumerated ones
-the test is not fairly called a test because it is only applied to a narrow subset of activities that it could/should be applied to. If it doesnt involve buttsex or abortions, your fundamental right will probably get a very different sort of test. God forbid you tried to make a right-to-contract-freely argument before the 9th circuit. Or a RKBA argument.
-sadly, the real test is- "does your claimed fundamental right involve something that modern liberals find sympathetic?" If yes, proceed to lawrence/casey Due Process logic. If not, proceed to not a right/rational basis jurisprudence.
Sex with men/donkeys/asparagus? 4th trimester abortion? Collecting scat porn? Youre good to go. 60 hour work week, even if the law forbids it? Right to carry a handgun? Oh lordy no. Weeza scared of that.
you make a very compelling point. due process is bad because it's countermajoritarian. just like the electoral college, equal protection, the first amendment, pretty much the rest of the bill of rights for that matter, the right to a trial, the filibuster, and a variety of other procedures designed to check the impulse of public majorities.
of course you probably think that some of those countermajoritarian devices are "appropriate." let me guess, the second amendment. who determines which countermajoritarian devices are "correct" and which ones aren't? by golly it's the constitution.
it seems to me that this is one of the poorer contexts to make the bumper-sticker argument about elitist judges. in this particular case they've conceded that the rule is fluid but have pegged the right to measure of objective change, rather than their subjective preferences. that seems like a pretty strong rebuttal to the idea that the due process clause means what the justices want it to mean.
and i mean this seriously, what is wrong with sex with asparagus? the fact that you would compare regulation of sex with a vegetable with regulation of a handgun which, you know, kills people, fits neatly in the "says more about the speaker than the subject matter" category.
If we were to adopt a new constitutional amendment to change the commerce clause back to "only things actually moving in commerce between the states," how would we word this new commerce clause? If we wanted the 2nd amendment to guarantee an individual right, how could we possibly word it better?
I am ok with countermajoritarian impulses when the majority is a simple majority of both houses; but making decisions that are beyond the reach of even constitutional amendment are off limits. Judges need to just accept that if the text of the constitution produces bad results, it isnt their job to fix that. That is judicial restraint.
and, just to correct your understanding of supreme court jurisprudence:
casey was not really about due process, it was about stare decisis.
and the lawrence "buttsex", as you so elegantly put it, is not particularly reflective of a trend on the court to expand its due process jurisprudence.
this will be the end of our conversation, though.
I'm in favor (generally speaking) of expanding individual liberty, but I'd prefer that it be done in an intellectually honest and intelligible way. Moreover, I'm fine with the outcome of Lawrence-- striking down state anti-sodomy laws-- but it could have been done in a number of ways that do not constitute an abandonment of the pretense that the Constitution means something more than the policy preferences of five Justices. Justice O'Connell's concurring opinion, for example, lays out a persuasive case for overturning the Texas statute on Equal Protection grounds. If Kennedy was determined to do it on Due Process grounds, he might at least have gone through the analysis set out by precedent-- i.e., determining the status of the right at issue and the level of review, and applying it to the statute in question-- rather than publishing pages of empty platitudes that abandon the traditional SDP tests and give virtually no guidance to lower courts in future cases.
I'm curious about your conclusion that Lawrence limits the power of the federal government in any way. The statute it held unconstitutional was a state law, and I'm not aware that the federal government has ever attempted to pass a similar one (which would be a hard sell even with a fairly permissive view of Congress's Commerce Clause authority). If we count the federal judiciary as a part of the federal government, it seems to me that Lawrence actually expands federal power vis-a-vis the states, while limiting state power vis-a-vis individuals. I don't see that it affects the federal government's power vis-a-vis individuals in any appreciable way.
Pointing out that this is stare decisis doesnt really change the 14th amendment holding, so I wonder why you point it out. Anyway, conversation ended if you wish.
with all due respect, if you beleive that judges can alter the the constitution without adhering to the constituion, and if you are a member of a state bar, you indeed are a frightening individual. you may be willing to place your God-given freedom (yes, it is God given, see the Dec. of Ind.) in the hands of judges, but I am not. And I do not believe most average americans are either. by the way, all those countermajoritarian items in your post are concretely found in the constitution. show me where judges were given the power to supercede article V and I will concede the point. furthermore, subjective preferences are the heart of democratic change as long as they come from the sovereign, i.e. the People. It it quite clear to any reasonable reader that the constitution can only be altered via article V.
I am not interested in discussing these things with you in light both of your bizarre attacks on me (i'm a "frightening individual") and of what appears to be a misguided belief that judges believe they are amending the constitution when they interpret it. So instead of go any further into it, I'll just paste in a drunk, terse answer to a similar attack by a friend and colleague of mine:
How about the equal protection clause? Does that require equal income? How about equal education? Is progressive income taxation unconstitutional? Is a flat tax unconstitutional as inherently regressive? Are libel and slander laws unconstitutional? Does the right to counsel attach at arrest? Arraignment? Trial? Are jury trials required for all causes of action? Is torture cruel and unusual? What rights are reserved to the states? The people? What process is "due"? Does that vary under the circumstances? Where do I find the non-delegation doctrine? Does the 11th amendment bar suits by citizens against their OWN states? What count as "cases" or "controversies?" Does the full faith and credit clause require Iowa to honor the marrraiges being performed in Massachutts? What are the priviliges and immunities of a citizen of any given state? Can Congress constitutionally fund the Air Force? If the federal government has to gaurantee that each state provides a "republican form of government," are popular referenda acceptable? What things constitute a republican form of government? Can the President fire his cabinet without Senate approval? Where does the Constitution explain that? What about withdrawing from treaties? Are Congressional-executive agreements with foreign nations acceptable? What about sole executive agreements? I forget which Article talks about those.
Since the document is "quite easy to read and understand," please explain the answers to those questions in a few short sentences.
We do not grant any mother (or father?) the power to end her (or his) child's life. The analogy fails miserably in defending abortion.
With respect to Raich, I would point out the irony in that the anti-California camp is forced to side with the AG on his interpretation of the CSA, which couldn't be a more "anti-originalist" position, given that the administrative state was a creation of the New Deal.
I don't know what to make of due process. I believe in precedent. The test is what it is. Would I formulate it that way? No. Do I think the correct way to interpret the clause is to freeze the menu of rights afforded to people at the framing? No to that too. If you think I'm "frightening," that's ok by me.
I never meant to cause you angst, but I must say that you are acting with a bit of a thin skin. God forbid you ever appear before some of the judges (or drill instructors!) I know.
Anyway, I beliieve the question concerning our discussion of the Constitution is this: where does interpretation stop and creation begin? That leads to the corallary question of whether interpretation is a form of creation? In so, are judges forbidden to "interpret." If not, back to the initial question.
I'm not being thin skinned. I'm being polite. I generally don't find conversations with people that immediately resort to those sorts of barbs to be particularly productive.
I think the answer to your bolded question is that interpretation is creation, but judicial review is by its nature a form of interpretation, so you're stuck interpreting/creating law any time you perform a textual exegesis of a constitutional provision.
Even the most conservative justices concede this point, and it is, for example, the academic rationale behind the Teague bar in habeas jurisprudence. But I reject any binary description of judical review - a supreme court adjudication lies somewhere on a spectrum between the two poles (interpretation and creation). I have no idea what due process means, and you don't either. Any judge who must interpret that provision must therefore undertake a measure of what you are calling creation. The idea that a constitutional provision has a "determinate meaning" ("originalism") proceeds from a ridiculous set of assumptions about the meaning of language, the relationship between the author and the speaker, and the circumstances of the framing.
the constitution "means" something, and I think most would agree that judges should effect what it "means." there are, however, a variety of indicia of constitutional "meaning." original intent/understanding is just an index of meaning - it is not the meaning itself. many, including myself, would question the interpretive reliability/legitimacy of that evidence of meaning. so your accusation about "creation" assumes what it must instead prove - that the constitution has some determinate meaning that, if we just had enough evidence, we could understand.
nobody thinks that judges should be able to make things up, nor do they think that judges should be able to cherry pick arguments yielding a desired result. many, if not most, conflicts on the Court result from a good faith disagreement about what the constitution "means."
I commend you for your work on this case.
I take it this is from the opinion:
federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician excruciating pain and human suffering.
To which one can only say, "If the law thinks that, the law is an ass."
you do realize that it was not declared a fundamental right, correct? the issue is "tough" and was not decided.
I also think that if the Founding Fathers had been asked whether a sickly person has a constitutional right to consume a little hemp now and again in order to survive, even if its growth, distribution and consumption had been declared unlawful, the answer would have been a resounding yes, although differing constitutional rationales might have been offered. But that was before the rise of the regulatory state drastically altered conceptions of personal liberty and affected constitutional interpretation on every level, usually for the worse. (I would think that the need for judicial interpretation of constitutional liberties largely arose because of the rise of the regulatory state.)
Even given the regulatory state, I do not understand why this woman should be told her interest in living is subordinate to the power of the state. What is the worth of a Constitution that produces that result? Preposterous.
If this woman were prosecuted for possession and consumption of marijuana, I bet that some federal judges would hold her motives for doing so are irrelevant, notwithstanding the necessity defense. Even if she is permitted a necessity defense, why on earth should this woman be put to the risk of choosing between dying and being prosecuted under the drug laws? The anxiety attendant on prosecution probably is itself enough to kill her; subjection to the criminal process is itself punishment regardless of the result reached. She's already been reduced to an emotional wreck by the rejections she's received in her affirmative suit for relief.
Yes, the law, especially constitutional law, is often a ass.
As would I, but I'm cynical to the point that I just hope for good results; I am without hope that the courts will be honest and intelligible on a regular basis.
I suppose "mildly" was too strong of a word! I guess my view of what Congress might try to do in the future is broader than yours; once again, I'm cynical.
When the federal government limits the states' power to restrict individual liberty, I think it's doing its job. You may well be right that Lawrence does not affect "the federal government's power vis-a-vis individuals in any appreciable [practical?] way." I hope so. I just don't trust the federal government (or the people, for that matter) enough to be sure. It seems to me that the US is becoming more of a democracy and less of a republic every day, and I don't see that trend ending anytime soon. I'm concerned for the future. The public schools seem to be quite excellent at one thing these days: turning out statists.
Talk about damning with faint praise...
I'll go one further, Vistor, and say that they would be confused about the question. That proposition would've been axiomatic.
If the federal gov's approach to medical marijuana does not show how close to fascist we've become, I don't know what does. I feel for the courts, b/c every decision on the issue seems to demonstrate a ton of sympathy for the patient/victim and seems to be hinting to the legislature that they need to act fast.
But no, our piece-of-shit congress (the C &D students in law school, as a prof. of mine used to say) does absolutely nothing. Too many corporations will suffer, thus, the sick and the dying must suffer instead. And for the partisans that seem to be new to this site and who love to paint everything as a R or D issue, it's not. Any congressman who is not outraged by this deserves to be stricken by any one of the debilitating diseases (AIDS, cancer, MS, etc.) that marijuana has proven---time &time again---to alleviate. Ed O: you really need to research the issue if you actually buy the Drug Czar's position on this.
Do you also think weed is a gateway drug that turns mild-manner men into rabid rapists?
I would like to know how likely it is that a frequent/daily user of marijuana would be prosecuted by a US attorney. I have been a prosecutor at the state level and Raich's situation seems much more likely to be addressed at there, but I might be wrong.
This, though, brings up a point that has not really been addressed: What about her suppliers? I would imagine that they would be much more likely targets of the US attorney. How do the participants of the VC see a case against them proceeding? Could they not interpose a defense of necessity: "I gave it to her to save her life" Providing marijuana would herein be no different than performing mouth-to-mouth on a drowning victim....right?
That being said, notice that there are relatively few comments here on this thread. Why? Because, I believe, any reasonable person here (regardless of political affiliation) realizes how wrong the government's stance is vis a vis medical marijuana. Non-controversial topics usually don't draw big crowds.
Let me enlighten you a bit, if I may. Yes, the government DOES go after individual medical marijuana patients. Please explain why hundreds of millions of taxpayer dollars should be spent prosecuting people who take a MEDICINE that is demonstrably safer than meds that are legal. Please also explain why these tax dollars should go towards trumping the will of individual states that permit medical marijuana. And just for fun, let's pretend that your point that the "Feds care a lot more about the drug dealers than they do her" is true. Why is that so? What makes these "drug dealers" (a/k/a gardeners) more morally repugnant than Pfizer? Anheuser-Bush? Phillip Morris?
Is the asparagus over the age of consent? There are some pervs out there who have sex with fresh asparagus!
Sex kills people too. Especially if your spouse catches you doing it with someone else.
But aren't we missing the real issue here? What about having sex with guns? That's what every red-blooded Republican wants to know about. Is it covered by the second amendment's "keep bare arms" clause or do we need to claim it as an unenumerated right? Now of you'll excuse me, I have to go polish my rifle.
The NYT gave considerable space to this story today (3/15) under the headline, "Dying Woman Loses Appeal On Marijuana As Medication." Referring to the appellee Angel Raich of San Francisco, the article began, "Federal appellate judges here ruled Wednesday that a terminally ill woman..." Exactly what disease process(es) is Ms. Raich dying from? Is there any credible medical evidence to the diagnosis and grim prognosis? If there is, can someone point me to it, because I have seen none.
Ms. Raich is said to have an "inoperable brain tumor." An MRI done at the University of California San Francisco (UCSF), an excellent medical center with an especially strong neurology service, was consistent with a meningioma at the base of the brain, a not readily accessible location. Meningiomas are almost always benign tumors, which is to say they do not invade the tissue around them or spread to other parts of the brain or body (metastasize); it is a matter of location, location, location and how fast they are growing whether anything must be done about them. It seems that her tumor was discovered more or less accidentally, as is often the case with tumors of this sort. There were no signs or symptoms to incriminate a structural abnormality of the brain like this one, the scan having been done for unrelated reasons. If the tumor was the cause of significant neurologic compromise, in all likelihood it could be removed. Ms. Raich has a tumor and no neurosurgeon would operate, but that doesn't mean this lady has an "inoperable brain tumor."
Ms. Raich was said to suffer "seizures." When she was studied at UCSF, however, the conclusion was that she had "pseudoseizures," that is something other than true seizures occasioned by any brain abnormality. (A word of caution - some individuals may have both "real" and "pseudoseizures. No EEG or other reliable evidence ever pointed to true seizures in Ms. Raich's case, however.)
In the materials submitted when Ms. Raich's case was before the SCt, the supporting medical evidence came from Ms. Raich's family physician, who had been voted Berkley physician of the year. I saw nothing from anyone with relevant clincial expertise to support the claim that she suffers any grievous physical disorder(s), in particular any neurologic one(s), let along any "terminal illness."
No doubt Ms. Raich is absolutely convinced that she has very serious medical problems that are physical in nature, and absolutely convinced that she must have marijuana. And I expect that the attorneys representing her have focused on the legal, credulously accepting that their client has very serious medical problems that are physical in nature. If I did not believe this, then I would say that a fraud had been perpetrated on the courts that were told that Ms. Raich "need marijuana to survive."
(The 9th Circuit "sympathized with Ms. Raich's plight and had seen 'uncontroverted evidence' that she needed marijuana to survive." I take "uncontroverted" to mean that this case was argued only on the law at each level, and that the "facts" about Ms. Raich's medical condition were never really scrutinized.)
It may be that the outcome of this case in no way turns on the true "facts" about Ms. Raich's diagnosis and prognosis, only on the relevant law. Still, I think it unfortunate that those seeking to legalize the medical use of marijuana did not do some due diligence before choosing this plaintiff rather than someone who really does have serious physical problems that might benefit from the use of marijuana.
[I have no first-hand knowledge of Ms. Raich and her medical issues; what I have said here is based entirely on what was available on line about her medical history and my knowledge of the relevant medicine. If someone has other medical "facts" to adduce or thinks I am wrong in my medical conclusions, don't hesitate to tell me.]
The 9A -- which is substantive due process by another name in many ways just as Black said dismissively in Griswold -- has to gain content somehow. And, yes, one way was the ever changing views of society in general, a sort of common law philosophy. This is reflected in general -- it does not "amend" the Constitution. It is factored into the Consitution.
See also, what "reasonable" means in the 4A etc. So goes the argument. Natural law rights, for instance, are not set in stone. They develop as human understanding and society does.
The discussion can go all over the place, but simply put, we aren't writing on a clean slate with abortion. We are not starting anew. Such is the case with medicinal marijuana. Esp. given the desperate situation here, society overall would accept legalized abortion (it translates to a health exception). As the ruling notes, medicinal marijuana is not as well accepted. Likewise, such as proactive right does not have similar foundation in precedent.
A "right to life" is as the ruling noted rather broad. If you want it to be broad, well don't support the judges that are pushed by the conservative and center/moderate sorts who make the key decisions these days!
It should affect the UCMJ's prohibition of "sodomy". The UCMJ does define some crimes that are not crimes for civilians, e.g. disobeying lawful orders, fraternization, and adultery. Adultery is possibly still on civilian lawbooks but never prosecuted; it is actively prosecuted by the military at least when it interferes with the smooth functioning of a military unit, e.g. the female Air Force officer and pilot who was carrying on an affair with the husband of a subordinate. (Of course, this was also a fraternization" violation, and disobeying an order since her commander had ordered her to break off the affair.) However, I don't see that a blanket prohibition on sodomy does anything to enhance military order and discipline. If there's a problem with gays in the military, it's with the reaction of straight men to men who may lust after them - and that's a problem even if the gay man never has sex. Sex within the unit can cause all sorts of problems, but the problems are the same whether the participants are same-sex military members, opposite-sex military members, or a military member and another member's spouse - and the rules against such disruptive relationships should apply regardless of the gender of the participants.
Of course, you can also have non-sexual relationships creating problems within a unit, like the time my supervisor's wife came to my wife sobbing that he beat her and kicked the cat to death. Good thing my wife had the sense to pass that to a higher authority (the Colonel's wife) ASAP...