Important note: Information in this article was accurate in 2003. The state of the art may have changed since the publication date.
San Francisco Chronicle - Thursday, September 18, 2003
Bob Egelko, Chronicle Staff Writer
The case offers the only opportunity to decide "whether Americans have a fundamental constitutional right to relieve their pain," Gerald Uelmen, a Santa Clara University law professor, told a panel of the Ninth U.S. Circuit Court of Appeals in San Francisco.
The three-judge panel -- which has already seen one of its rulings in favor of the marijuana clubs overturned by the U.S. Supreme Court -- seemed sympathetic to Uelmen's position but dubious about his legal argument.
Judge Stephen Reinhardt noted that the same constitutional right -- to be free of debilitating pain -- was asserted in an earlier suit that challenged a state law against doctor-assisted suicide. The appeals court, in a ruling by Reinhardt, agreed that such a right existed in 1996 but was overruled by the Supreme Court in 1997.
"The Supreme Court did not seem to understand that argument," Reinhardt said, with a rueful smile.
A different panel of the appeals court is now considering a Bush administration challenge to an Oregon law allowing doctor-assisted suicide. Uelmen represents a Santa Cruz cooperative that is seeking to recover the marijuana seized by federal agents in a raid last September. Marijuana clubs in Oakland, Fairfax and Ukiah are appealing injunctions obtained by federal authorities that prohibit them from distributing marijuana to patients. About three dozen similar organizations have sprung up statewide since California voters approved a medical marijuana initiative in 1996.
The appeals court ruled in 2000 that the federal ban on marijuana did not prohibit distribution of the drug to severely ill patients whose doctors had recommended it, and who were not helped by federally approved medicines. The
Supreme Court overturned that ruling in 2001, spurring a series of federal raids and prosecutions of pot suppliers in California.
Wednesday's hearing involved constitutional challenges to federal enforcement actions, which the Supreme Court did not address in 2001. One was Uelmen's claim that the right to life and liberty under the Constitution includes a right to use a substance that offers relief from extreme pain or from disabling effects of conventional treatment for cancer or AIDS.
"If a dying cancer patient is able to live one more day without vomiting . . . what interest does the federal government have in sending armed agents to his bedside?" Uelmen asked.
Justice Department lawyer Mark Quinlivan replied that the courts have upheld Congress' authority to classify marijuana as a substance with no recognized medical use. Quinlivan said the appeals court rejected a similar constitutional claim years ago by a terminally ill cancer patient who believed he could be cured by Laetrile, an apricot pit derivative that is unapproved for medical use and banned in interstate commerce.
"There is a (constitutional) right to treatment but there is no right to unapproved drugs to relieve pain," Quinlivan said.
The clubs also argued that Congress' power to regulate interstate commerce doesn't cover marijuana that is grown and distributed entirely in California.
But Quinlivan said the courts have upheld Congress' conclusion that homegrown marijuana contributes to interstate drug trafficking.
E-mail Bob Egelko at begelko@sfchronicle.com.
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