Dorf on Raich:
Professor Michael Dorf, of Columbia Law School, had an interesting post on Dorf on Law yesterday on the Raich case that mirrors some of my thoughts in today's Journal.
More blogging on Raich on Drug Law Blog here
The court also rejected her substantive due process claim, largely on the strength of Washington v. Glucksberg. The court plausibly read Glucksberg to require a narrow "careful" definition of the right in question, which it defined as the right to use medical marijuana. Not surprisingly, it found that society had not yet recognized any such right as fundamental.By coincidence Mike presented a paper at my Advanced Constitutional Law Seminar at Georgetown yesterday and he and I discussed in class why Judge Pregerson, a stalwart liberal on the Ninth Circuit, might have ruled as he did. Mike reports on our exchange (as, a propos my previous post, I fully expected he would), and offers his own thoughts here.
To my mind, this only shows the poverty of the Glucksberg approach. The real question is whether the government can ban a medical treatment necessary for sustaining life on the ground that Congress by fiat declares that the medical treatment is unnecessary or not efficacious, without granting a litigant any right to present factual evidence to the contrary. The answer to that question could be yes. We might think that Congress, or a state, or an administrative agency, is better situated to make medical judgments — even if sometimes those medical judgments are politically motivated — than are the courts. Or we might think that the judgment of Congress is entitled to a rebuttable presumption of correctness. But under the Glucksberg approach, we don't even ask the question.
But then, to repeat the question I asked yesterday, why did Judge Pregerson not also consider that in Lawrence the Supreme Court did not re-frame the issue in a way that undermined the plaintiffs’ claims? Instead of characterizing that case as involving, for example, a general right to sexual liberty (likely too broad to win approval) or a right to have same-sex anal sex (likely too narrow to win approval), Justice Kennedy accepted the plaintiffs’ framing of a right of intimate association that includes control over adult consensual sexual acts. The Lawrence opinion doesn’t exactly say that there is such a right, because it’s unclear what level of scrutiny the Court applies, but it also doesn’t adopt the Glucksberg framing. So what gives with Pregerson?Later in the Spring, I will be contributing to a symposium sponsored by the Michigan Law Review on Glucksburg, so that will give me an opportunity to expand greatly my the critique of that approach.
Professor Barnett suggested that Pregerson accepted the Glucksberg approach because he, Pregerson, was predicting that if the case made it up to the Supreme Court, there would be five votes for using that approach---at least in a case involving medical marijuana. And, Barnett said, that’s probably a good prediction in light of the questions Justice Kennedy asked during the oral argument in Raich, which were quite hostile to the plaintiffs’ arguments.
For me, this raises the question of whether a lower court judge should base his ruling in an area of uncertainty on his prediction of how individual Justices currently on the Court would vote, rather than his own best judgment about what the law is or should be. The Supreme Court decision in Raich 1 was not, after all, a holding on the substantive due process issue, and so nothing in that case bound the 9th Circuit in in Raich 2. My own view, which I argued at some length in a 1995 article in the UCLA Law Review, is that except in a few unusual circumstances, the job of lower court judges is to make their best legal judgment, not to predict the legal judgment of those who may end up reversing them. Here, I’ll just reproduce the barest core of the argument: "The prediction [approach] undermines the ideal of the impartial judge. It conceptualizes a high court as the sum total of the views of the individual judges. By contrast, the ideal of impartiality requires that judges attempt to separate their individual views from the requirements of the law. Thus, even if the high court judges are persons of impeccable character, the prediction model undermines the ideal of impartiality by equating particular high court judges' views with the law."
More blogging on Raich on Drug Law Blog here
Related Posts (on one page):
- Dorf on Raich:
- Raich and Scrutiny Land:
- Ninth Circuit Rules in Raich Case:
In my view, Glucksberg was wrong precisely because it played semantic games in characterizing the interest at stake. I think even Prof. Dorf's view might be too narrow. I'm curious, though: Prof. Barnett, in your view, how should the interest be characterized (in Raich or Glucksberg)? Did Prof. Dorf give the same answer you would, or would you broaden the issue even more?
If I recall correctly, Supreme Court held in Stenberg v. Carhart that, despite congressional findings enumerated in the statute that "partial birth abortion" is neither safe for women nor necessary to preserve their health, the decision of a pregnant woman's own treating physician that the procedure is necessary to save the woman's life is sufficient to meet the necessity burden. (Though testimony of and/or amicus briefs from other medical experts also played a role.)
I'm curious to know your thoughts on whether, and how, courts should view the opinion of Angel Raich's physician in defining the right in question -- and whether the opinion of Raich's physician could trump congressional and FDA findings that marijuana is not a "safe and effective" medical treatment.
So I cannot afford your op-ed strict scrutiny...
Would that be the opinion of Ms. Raich's family doctor, who was voted Physician of the Year in Berkley, or the specialists at the University of California San Francisco?
I believe the former deserves little or no weight and the latter a great deal of weight.
Ms. Raich has been described as "terminally ill," but it has not been said what illness she has that carries so grim a prognosis. It surely is not the benign tumor (meningioma) that sits at the base of her skull, which her physicians have chosen not to operate on for the simple reason that it was effectively an accidental finding and is causing her no neurologic problems.
It is amazing that the case for marijuana as necessary to alleviate suffering and perhaps save a life is being made with a lead plaintiff like Ms. Raich, whose "physical" problems are so dubious. (see my 3/15 at 10:14PM post to RB's thread started 3/14 at 4:53PM) If bad facts make bad law, those in favor of legalization of medical purposes could have picked a much better plaintiff for this purpose. Now, they can only hope that those deciding the law never scrutinize the medical facts in the instant case.
There's a little part of that thinks it is really important for us to have discussions of the appropriate level of scrutiny and the methodology by which the Court should decide these matters. But the realist in me knows that judges don't decide "hot button" cases based on legal theory or precedent. They decide the results, then look for theory or precedent that give them the result that they want. As much as I respect Justice Scalia, it is pretty apparent that Scalia concurred in the judgment on Gonzalez v. Raich because he supports the drug laws. Justice Thomas's willingness to dissent reflects very highly on him.
Man goes to Doc and says he feels terribly ill. Doc doesn't see any obvious cause immediately, so he says "You aren't really ill. You just think you're ill. Get a good night's sleep and call me tomorrow."
Next morning Doc's phone rings. It's his patient's wife. Doc says "Does he still think he's ill?"
Wife says "No. He thinks he's dead."
"Angel Raich contended that using the CSA against her infringed her right to preserve her life. If any right is fundamental, this one is: the right to 'life'...
...So if the right at issue in Ms. Raich's case is the right to preserve her life...
...a right to preserve one's life.
...Ms. Raich is preserving her life..." (emphases added)
Understood literally, and presumably a literal understanding was intended, "preserving her life" must mean avoiding or forestalling that which would likely bring about premature death. (None of us will avoid or forestall our own deaths forever.) So it would seem more than reasonable to ask, indeed unreasonable not to, what medical condition(s) would cause her premature death if she is not able to use marijuana.
Or is this case not about "preserving her life," because Ms. Raich does not have what the NYT reporter characterized as a "terminal illness," but rather about
"preserving her quality of life," because Ms. Raich earnestly believes that marijuana is essential for that more subjective purpose?
What happens to the "medical necessity" argument if Ms. Raich has neither a "life threatening illness," nor serious physical problems for which marijuana is the answer? Would that argument crumble if it rested on Ms. Raich's belief, however sincere and earnest, that she has medical problems that require marijuana?
But is it even possible to avoid doing this? How can we possibly design a rule that would constrain the level of generality at which conduct will be characterized? And what considerations should play a role?
I think Prof. Barnett's point on the use of scrutiny determinations as a back door for ideology is spot on...I just wonder what can be done about it. Is there any way to give judges discretionary power to strike down liberty-infringing legislation (under either DP or Priv/Immun) without inviting this sort of gamesmanship?
That's the easy question -- sure we can. We just limit the argument to the 3 basics: life, libery, property. The courts should not engage in semantics by re-characterizing a claimed liberty right as something else.
This, of course, is the hard question. I don't think there is any definitive answer to this, nor would I expect there to be one. That doesn't mean we give up either.
Cardozo's "implicit in the concept of ordered liberty" at least tries to address the isssue. Alternatively, one could approach the question by asking whether the majority will find itself bound by the rule it wants to enact, as opposed to foisting the consequences on to some subset of the population. In addition, we can consider the importance of the particular exercise of liberty to the continued functioning of republican government itself.
In short, IMO we need to identify policies which guide us, not rules which control us.
Agreed.
This situation is the inevitable outcome when we allow or cause a government to tell us what we may or may not do when our actions do not impinge on others in the common sense understanding of that phrase (pace Wickard.) As soon as the government is allowed to ban marijuana, or alcohol, or gay sex, or trans-fat, we rob liberty of its foundations and cause it to be all the more easily undermined.
Sadly, there is always that one cause that seems important enough to enough people to go against this principle....
She has been permanently disabled since 1995, she has an inoperable brain tumor (which may or may not be life threatening - its a f-ing brain tumor after all), chronic pain disorder, suffers from wasting syndrome (think AIDS symtpom only she doesnt have aids) she suffers from a seizure disorder, Scoliosis, TMJ, among others. In addition, and this may be key for some, ms. raich is highly allergic to many chemical susbtances, particularly chemicals used in the drugs that normally would be used to treat the above disorders.
So even if the brain tumor or scoliosis is not life threatening, the fact that that she cant take the normal routine of medications for her seizures, wasting syndrome, scoliosis, tmj and brain tumor etc... creates a situation unique to her that requires something else. In this case, something more natural. The marijuana decreases her nauseau and chronic nerve pain - in addition, it gives her an appetite so that she can eat. Without food, patients such as ms. raich do not have the energy to fight her numerous illnesses - similar to anyone on chemo or who has advanced stages of AIDS.
So, you all can whoohoo and joke about her being a fake - but make no mistake - SHE IS SEVERELY SICK. Marijuana helps her cope. It may not save her life, as pot in and of itself is not a "cure". But this is beside the point. Many drugs only treat symptoms and not the disease itself. What marijuana does is allow her to prolong her life by allowing her to keep food down so her body can have the energy to fight her numerous diseases. In this sense, marijuana does not cure her diseases, but IT HELPS KEEP HER ALIVE and that, i think, is something she is entitled to do under the due process clauses of the u.s. constitution.
Only in a drug enforcement system so absolutely misguided and retarded as the USA's would this idea ,using a naturally occurring susbtance to keep a human being alive and allow them the opportunity for a better life, be seen as odd, dangerous and illegal. FOR SHAME
I don't think one must be a physician to recognize that starvation can be fatal, whether by itself or from some indirect cause that would not kill a normally nourished person.
Would she die tomorrow if she didn't have cannabis today to permit her to keep food down? I doubt it. But in much less than the long run, starvation is fatal. Every time. If cannabis allows her to take nourishment that she otherwise couldn't, then it is indeed saving her life.
And that's just one of the ailments she had at the time.
Mr. McCabe says he heard your client speak at a NORML conference and he that she "suffers from wasting syndrome (think AIDS symtpom only she doesnt have aids)" and "marijuana decreases her nauseau...giving(ing) her an appetite so that she can eat. Without food, patients such as ms. raich do not have the energy to fight her numerous illnesses - similar to anyone on chemo or who has advanced stages of AIDS." But Ms. Raich has never been diagnosed with AIDS or any other disease process known to produce "wasting syndrome," has she? And she is not on chemotherapy. So what is thought to be the explanation of the nausea and anorexia for which she has been using marijuana? It would be most extraordinary if competent medical specialists could not establish a diagnosis for such a condition despite determined.
If Ms. Raich is "highly allergic to many chemical susbtances, particularly chemicals used in the drugs that normally would be used to treat the above disorders," which chemicals are those; when/where/how were the alleged "allergies" been objectively confirmed; and what reputable specialist(s) would be willing to testify in support of the contention she because of "allergies" to "chemicals used in the drugs that normally would be used to treat (her) disorders"?
Am I right about the benign nature of Ms. Raich's brain tumor, that is that it is a meningioma (actually a tumor the meninges, which surrounds the brain, not of the brain itself) and that no neurosurgeon has undertaken to remove it because it has not caused any neurologic compromise and is not expected to? If I am wrong in this regard and the tumor has shown malignant characteristics or somehow produced neurologic compromise, would you please give us the relevant facts. (Those "seizures" were accompanied by no EEG abnormalities and were thus assessed as pseudo-seizures, were they not, so they might be adduced as evidence of psychiatric issues, but not of neurologic compromise, right?)
Was any "due diligence" done with respect to the background medical facts before or after this case was filed? Does it not matter whether Ms. Raich indeed has medical problems that require extraordinary or unconventional measures, perhaps marijuana? Or is it enough that Ms. Raich sincerely and earnestly believes that her problems require marijuana?
GregC asked whether the opinion of Ms. Raich's physician about marijuana as "'a safe and effective' medical treatment should trump congressional and FDA findings." I too would be interested in that answer, as well as answers to whatI have asked about the medical bona fides of the condition(s) which supposedly require treatment with marijuana.
That Ms. Raich appeared to you like someone in the early stage of AIDS wasting syndrome tells us nothing about what, if anything, physically ails Ms. Raich and might be the basis of a claim of "medical necessity." I am surprised that those trying to persuade the courts the marijuana can be "medical necessity" and thus its use must recognized as a Constitutionally-based right did not go forward with a plaintiff whose medical bona fides were uncontrovertable, not just "uncontroverted" to date by the appellant.
Autoversicherung und kfz versicherung
What is at issue is not whether Ms. Raich would prevail if she raised the necessity defense. What is at issue is whether she (or anyone) is entitled to raise the necessity defense at all, so that she (and by precedent others) would be entitled to use it.Only after the courts permit the defense to be raised at all, do the issues you raised here become relevant.
You said Ms. Raich looked like people who wasted away with advanced AIDS, and you seemed to believe there must be some underlying "physical" problem(s) to account for Ms. Raich's wasting, which marijuana might benefit. My point was that one need not have any underlying physical problem to waste away, that one could decline to eat and starve oneself to death because of underlying "mental" problems or a politically motivated protest, neither of which call for marijuana.
What is at issue is not whether Ms. Raich would prevail if she raised the necessity defense.
This case is captioned Angel Raich v. Gonzales, not Everyman/woman v. Gonzales. Isn't the plaintiff's counsel representing that their client, not an unspecified individual among the populace at large, is adversely affected by the federal government's enforcement of a ban on marijuana use for any and all purposes, including medical, and that the court's decision will have consequences for this plaintiff? If counsel is making no representation that marijuana is a "medical necessity" to "preserve the life" of Ms. Raich, then how does Ms. Raich have standing?
What is at issue is whether she (or anyone) is entitled to raise the necessity defense at all, so that she (and by precedent others) would be entitled to use it.
...Only after the courts permit the defense to be raised at all, do the issues you raised here become relevant.
The Nineth Circuit, and perhaps later the Supreme Court, will say whether "medical necessity" might be asserted as a defense against prosecution for use of marijuana. They will decide it as a matter of law, not based on Ms. Raich's medical particulars, which as yet have not been scrutinized by any court. And only if a higher court decided to allow that defense will Ms. Raich's medical particulars be scrutinized by a trial court. But is it unimaginable that those charged with deciding the legal question might while pondering it ask themselves what the practical consequences of their decision would be and look at Ms. Raich as representative of many of those who would assert such a defense if it were allowed? Rather than unimaginable, it seems to me probable. And so it is that "bad" facts can make for "bad" law, even if to date the facts in the case before the appellate judges haven't been fully elaborated and tested.
Most often, of course, the facts are developed and argued in a trial court before going up on appeal, so the appellate court knows the facts of the matter. But in Ms. Raich's case, a decision on the applicable law will come first, and the "facts" relevant to a decision in the instant case of Raich v. Gonzales will come later if that appellate decision on the law is favorable to Ms. Raich and similarly situated individuals.
So, as a practical matter, Ms. Raich's "facts" may proveto be of consequence not just for her, but also for others who might want to argue "medical necessity" as a defense against prosecution for using marijuana. And from what I have seen of them, I do not think Ms. Raich's facts are very good ones.
(Recently, the Supremes decided that case about the high-speed car chase by the police that left a young man quadriplegic. Did they have to see the video of that chase to decide the law as it pertained generally to what police can and cannot do when trying to apprehend someone fleeing them? I'm not sure they did, but they saw the video and it seemed to have considerable impact on the justices, prompting Scalia to say that he had not seen a car chase like that one since The French Connection. {How many movies has Scalia seen in the 30+ years since that one was made? Should we look into what videos/DVDs he has rented?} Perhaps the justices would have decided the law in exactly the same way had they not seen the video, but can anyone be very confident that the video did not influence the outcome?
If an appellate judge said to him/herself that Ms. Raich's medical claims struck them as bogus, might that not influence their thinking about a "medical necessity" defense where marijuana is concerned?)
Couldn't those making the "medical necessity" case have found a better plaintiff than Ms. Raich? If not, what does that say about the wisdom of allowing a "medical necessity" defense to a prosecution for use of marijuana? (Note: I am agnostic about medical indications for marijuana, so am not prepared to engage on that subject.)
No, I didn't. I wrote:She was thin at the time, not emaciated. But that was more than 10 years ago.
neurodoc wrote:I'm well aware of your point. I was aware of it when I first read it upthread. I'm discussing apples. You're discussing oranges.As I understand it, Ms. Raich's standing arises from the obvious: she uses cannabis (legally under state law), and she is likely to be prosecuted under federal law.
In states where necessity is allowed as an affirmative defense, it is still rare. Its use typically requires a threshold hearing presuming all asserted facts in best light for defendant. That doesn't mean the motion to raise the necessity defense is always granted. I recall a local case where the motion failed at threshold hearing. The elements of the defense can be quite difficult to meet even presuming all facts in best light for defendant. Once the threshold is affirmed, then the presumption is removed for trial, and defendant must prove each element by preponderance of evidence.
That is a difficult burden of proof to meet in criminal case, and very different from defendant's usual burden only to persuade of reasonable doubt about the prosecution's asserted facts. The necessity defense admits that defendant violated the law, but seeks to prove by preponderance that the violation was necessary for a legally recognized reason.
So your factual assertions here (that she has no physical disease) could be relevant at either stage in a typical state trial.
But the legal issues in Raich v. Gonzales are a different beast altogether: First, whether the necessity defense exists at all, for Ms. Raich, or anyone else prosecuted under the applicable federal statute in the federal courts. Second, whether Ms. Raich on the basis of a showing of necessity, can enjoin future federal prosecution.
Ms. Raich says it does exist and she can enjoin. Mr. Gozales says it doesn't and she can't. The 9th Circuit appears to say it does, but she can't.Short answer as a practical matter, yes. As a matter of law, the issue isn't the likelihood of success of Ms. Raich's necessity defense if it were raised at trial."Those making the case" for Ms. Raich are her lawyers. It's not as if some eminence grise seeking to establish the right to a necessity defense was looking for a plaintiff and told them to take her particular case.
If "more than 10 years ago" Ms. Raich "seemed much like someone in early stages of HIV wasting syndrome" and she is still around today, I think that might argue against the necessity of marijuana to "preserve life" in her case, that is unless you believe that marijuana has true miraculous therapeutic effects on "inoperable brain tumors," as well as all those other maladies Kelvin McCabe thinks she is afflicted with ("chronic pain disorder, ...wasting syndrome [think AIDS symtpom only she doesnt have aids] a seizure disorder, Scoliosis, TMJ,...and...is highly allergic to many chemical susbtances, particularly chemicals used in the drugs that normally would be used to treat the above disorders.")
You say, "...Ms. Raich's standing arises from the obvious: she uses cannabis (legally under state law), and she is likely to be prosecuted under federal law." If she did not use cannabis and face the prospect of prosecution under federal law for doing so, then she would not have standing. But courts don't entertain hypothetical questions, and so there had to be no anexplicit or implicit representation that marijuana was for Ms. Raich a "medical necessity." And before counsel makes such a representation to an appellate court, I think there is an ethical duty to do some due diligence to satisfy oneself that such a representation can be made in good faith.
Short answer as a practical matter, yes. As a matter of law, the issue isn't the likelihood of success of Ms. Raich's necessity defense if it were raised at trial. Right, the court could be persuaded by the legal arguments advanced by plaintiff's counsel and allow a medical necessity defense against prosecution for the use of marijuana, though the facts might not support such a defense in this plaintiff's case. But what I was suggesting was the old adage that "bad" facts can make for "bad" law might apply here, and your "short answer" about this "practical matter" sounds to me like agreement on this important point.
It's not as if some eminence grise seeking to establish the right to a necessity defense was looking for a plaintiff and told them to take her particular case.
I don't know the off-the-record background to this case and such things as who is funding the litigation. I do know that interest groups often influence the choice of "test cases" and seek to avoid ones that for whatever reason do not seem the most propitious to go forward with. (My memory fails me, but I recall that a few years ago there was a civil rights case headed for the Supreme Court and certain interests groups were beside themselves because they weren't in control of the case and thought it looked like a loser that would make for "bad" law from their perspective. So great was the concern of these interest groups that there was talk of coming up with money to buy the plaintiff off and see the case go away before the Supremes considered it. And they never did.)
I don't know about any eminence grise or eminences grises in the background or foreground here. But correct me if I am wrong, Ms. Raich was not prosecuted for marijuana use, so her case was brought as a pre-emptive or pro-active move. And she was not uniquely suited to be the lead plaintiff in such a case. (Indeed, I think she was poorly suited for that role.) So unless Ms. Raich is funding this litigation all by herself, I expect others not so grise were/are involved in making it all happen.
So what exactly do we disagree about other than perhaps Ms. Raich's medical bona fides, which have been my intended focus?
For years Drs. thought such patients were just junkies. Then the underlying cause was found and now opiates are indicated.
There is so much in medicine we are still ignorant of.
Thus we ought to defer to individuals and their Drs.(whatever the doctor's reputation or training) rather than courts or Congress.
Government practice of medicine is bad for your health.
"Unless we put medical freedom into the Constitution, the time will come when medicine will organize an undercover dictatorship. To restrict the art of healing to one class of men, and deny equal privilege to others, will be to constitute the Bastille of medical science. All such laws are un-American and despotic, and have no place in a Republic. The Constitution of this Republic should make special privilege for medical freedom as well as religious freedom." abridged quote --Benjamin Rush, M.D., a signer of the Declaration of Independence
Well if you are up on your cannabis literature
Marijuana May Stall Brain Tumor Growth
You would know that there is research out there that points to that very fact.
The level of ignorace out there among people who should actually know better is astounding.
How long did it take me to do the above research and find the url? About 5 seconds.
It is like after a certain age people lose their curiosity.
He is alive now with a disease that normally kills in 5 years. His life has been extended more that 25 years.
Pot.
In 1968, at the age of 23, he began experiencing symptoms of hypertension and palpitations. He was diagnosed with malignant phenochromocytoma, a rare, fatal form of adrenal cancer. Kubby underwent surgery to remove a tumor in 1968, 1975 and 1976. This last time, his medical records show that the cancer had metastasized to his liver and beyond. All other patients with this diagnosis have had a 100% mortality rate within five years. His physician, Dr. Vincent DeQuattro, a specialist from the USC School of Medicine, monitored his condition and treated him with conventional therapies, including chemotherapy, until referring him to the Mayo Clinic in 1981 for yet another surgery and radiation.
For the next 25 years, Kubby controlled the symptoms of his disease solely by smoking medical marijuana and by maintaining a healthy diet. His original doctor, an expert on this condition shocked to learn he was still alive, said, "In some amazing fashion, this medication has not only controlled the symptoms of the pheochromocytoma, but in my view, has arrested its growth."[3]
Steve Kubby
I assume (possibly incorrectly) that you are aware that a bad enough quality of life can lead to suicide?
I'm told suicide is against the law.
So would you say that in some cases preserving the quality of life is necessary to preserve life?
And before the "addiction" thing comes up let me tell you what the NIDA says:
Addiction Is A Genetic Disease
Benjamin Rush is an important figure in the history of this country and in the history of medicine. That "quote" you attribute to him is so singular that I wondered where I could find it. The answer seems to be "nowhere," since it has been outted as a bogus one. (Google on "Benjamin Rush Bastille" and go to the article by no other than the iconoclastic Thomas Szasz that appeared in History of Psychiatry. If you can come up with an original source for the quote showing Szasz and others to be wrong about the quote's genuineness, please let us know because that would be newsworthy.)
To Those for Whom Medical Marijuana Remains an Open Question: If "medical necessity" were allowed as a defense against prosecution for possession of marijuana and you were sitting on the jury, what would it take to convince you that marijuana was required to "preserve life" in the case you were to decide? (If you're mind was already made up that marijuana could "preserve life" or that it could not do that, then I think either the defense or the prosecutor would move to strike you from the panel, the only question being whether it would be for cause or not.)
Would you have any trouble getting your arms around "necessary to preserve life" and need guidance from the judge how that was to be understood? Or do you think it straightforward enough that you could decide the facts without any instructions from the judge in this regard? Does "necessary to preserve life" mean without marijuana the defendant's life is likely to be foreshortened and with it their life expectancy would be increased? ("Expectancy" already factors in probabilities, so we ought not need to add something like "likely to," "could possibly," "almost certainly," etc.) Or for these legal purposes is "preserve life" a more expansive notion, encompassing a subjective "quality of life" as well as an objective "quantity of life"?
Do you think in your deliberations you would have to answer GregC's question above ("I'm curious to know your thoughts on whether, and how, courts should view the opinion of Angel Raich's physician in defining the right in question -- and whether the opinion of Raich's physician could trump congressional and FDA findings that marijuana is not a "safe and effective" medical treatment.") Or would you expect to be told your scientific starting point? (If the court accepted as a scientifically settled matter that "marijuana is not a 'safe and effective' medical treatment," or that Marinol, a legal drug, provides the same benefit as home grown marijuana, then would it even entertain a "medical necessity" defense?)
non-juror legal scholars: where/when will the question of whether marijuana can "preserve life" be decided? Will it be left to trial courts to decide that in each and every case as a predicate to the question of whether it was needed to "preserve life" for individual defendants? If the defendant sincerely believes marijuana to be necessary to "preserve life," namely their own, and some physician will support them, then ought they prevail even if the prosecution puts on convincing evidence that the defendant in fact suffers no life-threatening condition? (If these questions are addressed in any of the Raich v. Gonzales materials available online, would someone please direct me to them.)
http://www.angeljustice.org/downloads/raichashlucido.pdf
cut and paste ^ that into a browswer.
Here are some of the pertinent details: "Angel is seriously ill. Her medical records confirm that she has numerous serious medical conditions, including life-threatening weight loss, naseau, severe chronic pain (from scoliosis, temporomandibular joint dysfunction and bruxism, endometriosis, headeache, rotator cuff syndrome, uterine fibroid tumor causing dysemenorrhea, chronic pain combined with an episode of paralysis, post-tramautic stress disorder, non-epilectic seizures, fibromyalgia, inoperable brain tumor, paralysis on at least one occasion, mutltiple chemical sensitivities, allergies, asthma, and her body reacts with violent side effects to almost all pharmacutical medications." That was straight from the doctor's affidavit.
I dont know what half the stuff above indicates, but i think you would agree that this lady has been dealt a cruel hand from fate. If smoking pot makes her happy - i for one have nothing to say against it. Even if you could prove to me that marijuana is dangerous, something i would be willing to entertain if the study was not conducted on behalf of the DEA or Fed. Gov.t, even if you could prove long term marijuana use was deadly (like cigarrette use) i think she should be able to smoke it. What difference does lung or throat cancer 20 yrs down the road make for someone dying of stomach cancer RIGHT NOW?? Isnt it really rather trivial to tell a AIDS or cancer patient that they cant find temporary relief from a plant because the DEA has found that it might not be safe even though they *the patient* said they have tried pot and it made them feel better?
Based on my knowledge, training and experience, which includes both that gained as a clinician and that derived from the review of the medical records of thousands of people seeking compensation of some sort (disability, personal injury, med mal, and toxic torts), I see that laundry list of diagnoses from a general practitioner as arguing very strongly for "non-physical" as opposed to "physical" problems. Indeed, given an opportunity to wager a substantial sum here, I would bet heavily against Ms. Raich having any medical condition of "physical" as opposed to "psychological/psychiatric" nature of any gravity, let alone life-threatening.
The fact that a physician is willing to say that a patient has a life-threatening illness means nothing in the absence of convincing evidence, and the evidence that has been presented points in the opposite direction. (Bruxism is grinding one's teeth; "non-epileptic seizures" means in fact no true seizures, that her "spells" are no reflection of brain disease of any sort, including that "inoperable brain tumor.")
Again, I have taken no position on whether any should be allowed to use marijuana, and if so, then whom. My comments pertain to the medical particulars of Ms. Raich's claim to require marijuana to "preserve life," the representations that have been made on her behalf, and what I see as her unsuitability for the role of lead plaintiff in this legal challenge that has gone all the way up to the SCt.
What is kinda funny here, not that it really matters, is that it appears from the various judicial opinions concerning Ms. Raich that the courts pretty much assumed she had the maladies described or attributed to her and denied her legal claims anyway. So even if all of ms. raich's medical claims are mental fantasies - something i have a hard time believing, after seeing her in person (or she is really dedicated to the lie) the courts assumed they were quite real. I think once this fact is recognized, i dont know if finding a more sympathetic petitioner is really possible. I think the problem lies in the war on drugs itself, and in this one case, the even more misguided war on people who use marijuana (medical or not).
neurodoc wrote (3.18.2007 1:51am):Bad faith representations are serious ethical violations, for which attorneys can be disciplined, and are disciplined. Anyone who has credible evidence of such acts can file a complaint with governing bar bodies. In this case one such body would be the State Bar of California.It is true that Ms. Raich was not prosecuted. She was raided by federal agents. After they turned her life upside down, the federal attorney apparently decided not to prosecute. I think his failure to prosecute was a purely self-serving act to avoid further self-inflicted ugly PR.
So her case was not preemptive in any commonly accepted sense of that word, ie: she didn't make the first move.
As to her "unique suitability", nobody is required to be "uniquely suitable" in order to have standing to bring a suit.Apparently several things, especially the ethics of Ms. Raich's counsel.
I don't think Ms. Raich's counsel are foolish or unethical, nor the puppets of some exogenous manipulators "making it all happen". I think they are extremely ethical, legally brilliant, and dedicated to zealously representing their client. So I don't think they would risk disbarrment by knowingly misrepresenting her medical condition to the courts.
neurodoc wrote (to M. Simon, 3.18.2007 12:06pm):I'm confident that Szasz is correct. However, Rush's friend and longtime correspondent Thomas Jefferson made much the same point while inveighing against state religious establishment, in "Notes on Virginia", circa 1786. Jefferson offered the prohibition of certain foods or medicines as an example:Any bogosity in that quote is due to my own scrivener error. And yes, Jefferson apparently spelled "potato" with an "e".
"Notes on Virginia" is readily available both in print and on the intarweb, for example, here.
I don't wish to go any further with what I think a lawyer's duty than what I said before about expecting counsel to have done some due diligence here. That would mean not unquestioningly accepting a general practioner's affidavit that is so sketchy on its face, especially in light of other evidence like the UCSF findings with regard to that benign brain tumor and pseudo-seizures. (Perhaps because I have worked with so many other lawyers on cases centering on medical issues, I expect more medical sophistication, less naivete than a professor of con law might have. Still, I should think if counsel had any notion they might be arguing the matter before the Supremes one day, they would have all their ducks, both legal and medical, in order before ever filing, even if the medical would not be scrutinized until later, if ever.) I never imagined, and certainly didn't mean to imply, that there were the makings of a bar complaint in this.
I take your point about the first move having been that of federal agents, not Ms. Raich. I still see her's as a "test" case, one that could have been pursued with better facts to support the marijuana as "medical necessity argument." A quasi-preemptive move on her part, and hence a quasi-elective legal undertaking?
Had this case started with a prosecution for possession rather the plaintiff asking a court to enjoin the government from prosecuting should they change their mind and decide to at some point in the future, the "facts" would have been fully developed before now. Instead, Raich v. Gonzales is in what I think an unusual posture, with appellate courts being asked to say what the law is or will be with little or no reference to the "facts" in the instant case, let alone the general scientific/medical predicates relating to marijuana as possibly necessary to "preserve life." (Again, is that to be understood narrowly and literally to mean forestall death, or is it to be understood more broadly as not only "quantity" of life, but also "quality" of life?) If the courts above agree that "medical necessity" must be allowed as a defense to prosecution for marijuana possession, then will trial courts all across the land be required to decide for themselves the scientific/medical question whether marijuana can be necessary to "preserve life" before deciding whether in fact it was necessary in the case before them? Then might some trial courts accept the general proposition that marijuana may be necessary, while others reject that proposition, though the science/medicine surely doesn't differ from venue to venue?
I wasn't contending that Ms. Raich's counsel, either her husband or the professor, were "foolish or unethical, (or) the puppets of some exogenous manipulators 'making it all happen'," so that can't be a point of disagreement between us.
As for the Jefferson quote, which unlike the Rush one sounds like the man from Monticello, interesting, but too great a stretch for me to agree it is very much like the bogus Rush one or has much relevance to Raich v. Gonzales.
[Why didn't you tell Dan Quayle to cite Jefferson as his authority for spelling? He certainly could have used the help at the time.]
I that the plaintiff has a laundry list of diagnoses, some obviously of no particular consequence for these purposes even if true (e.g., "bruxism"), and requires marijuana to keep her alive. I would especially expect questioning of what I will call the medical bona fides in light of other evidence, like the UCSF findings with regard to that benign brain tumor and pseuod-seizures. But
in a case like case to satisfy themselves that the client's claim