The Ninth Circuit really has its act together. The oral argument in the Raich case that I argued only a week ago on Monday in Pasadena is now available on-line. It runs about about 1 hour and 15 minutes. The judge doing most of the questioning (about standing) at the beginning is Judge Beam from the Eighth Circuit. He is the judge who dissented from the last ruling in our favor. The soft spoken judge who opens the argument is Judge Pregerson; the judge with the younger-sounding voice is Judge Paez. I feel constrained from commenting too much on what happened during the argument. You can hear it for yourself here. You can find the briefs of the parties and amici here.

The key cases for us are Stenberg v. Carhart (SCOTUS, 2000) and Planned Parenthood v. Gonzales [PDF] (9th Circuit, 2006). Stenberg establishes two propositions: (1) There is a separate and surviving fundamental right to life (and health) even after the right of privacy is overcome by the state's interest in protecting the life of a viable fetus. (2) A medical procedure cannot be prohibited unless there is no reasonable medical dispute that the procedure is never necessary to protect the life or health of a woman. Planned Parenthood essentially follows Stenberg but adds the following: The issue to be addressed by Congress (to which the courts should defer) is not whether the medical procedure is necessary, but whether there is a consensus among medical authorities that it is necessary. In the latter case, it was not rational for Congress to find the existence of a consensus since substantial disagreement obviously existed.

In Raich, the need for medical cannabis to preserve life is strongly supported by some medical authorities, including the Institute of Medicine (for example in the case of wasting syndrome or nausea accompanying chemotherapy). So under Planned Parenthood and Stenberg, given the existence of ample objective support for its use among medical and public health authorities (though not, of course, a complete consensus), the government may not completely prohibit the medical use of cannabis when a licensed physician says it is necessary to preserve one's life. However, the government may, if it so chooses, heavily regulate its use to ensure it is not misused or abused (as it presently does with cocaine, methamphetamine, and other Schedule II controlled substances).

[NOTE: If you click on the above link, you will be prompted either to save the file to disk or open with Windows Media Player. Some have had a problem playing directly from the link without first saving to disk. Also, if the previous direct link does not work you can use this link to request case number file 03-15481.]

Update: A commentator asks:

Why isn't the FDA approval process the heavy regulation that you concede is permissible in your hypothetical world? Medicinal marijuana will be perfectly available once the FDA just goes through the process of approving it.

The short answer is that putting the onus on a seriously ill person to undergo the FDA approval process before she can use a homegrown substance to save her life places an "undue burden" on her right to life under Planned Parenthood v. Casey. Under Stenberg, "regulation" is to be distinguished from complete "prohibition." The FDA process you describe is used to determine permitted from prohibited. The regulations that would be permissible are those, such as with Schedule II controlled substances that ensure access to the drugs by those who need it while preventing abuse without imposing an undue burden. Such access cannot be denied so long as there exists substantial medical authority for the necessity of such a medical procedure.

Or, put another way, so long as there is no consensus among medical authorities that such a procedure is never necessary. Other possible regulations are suggested by those in Canada, e.g. requiring two physicians concur that using cannabis is necessary for a particular patient and/or requiring that other substances be tried first and be shown ineffective. This is all a matter for Congress, not the courts.

Think of it this way. Lots of dangerous drugs like cocaine and methamphetamine are available by prescription and we rely on state-licensed physicians to be the gateway between these substances and patients who need them. We do not rely upon a single physician to determine whether a particular substance should be permitted or prohibited, but when substantial medical authority exists for a procedure's necessity it cannot be prohibited.