[JURIST] The US Ninth Circuit Court of Appeals [official website] on Wednesday ruled [PDF text] against granting medical marijuana plaintiff Angel Raich injunctive relief preventing federal law enforcement officials from enforcing the federal Controlled Substances Act (CSA) [text] against her. Raich suffers from scoliosis, a brain tumour, chronic nausea and other ailments that have not responded to conventional medical treatment. In 2005, she lost her commerce clause [text] challenge to the CSA in the US Supreme Court when the Court ruled [JURIST report; text] in Gonzales v. Raich that Congress has the power to criminalize the growth and use of marijuana for personal medical reasons with a doctor's recommendation. On remand, the district court held against Raich, who appealed, arguing that her marijuana use was protected by the common law defense of necessity [backgrounder]; that the CSA violates the Tenth Amendment [text]; and that the CSA by its terms does not prohibit her marijuana use, because the statute contains an exemption for use when prescribed by a doctor.
The Ninth Circuit concluded:
Raich has not demonstrated a likelihood of success on the merits of her action for injunctive relief. First, we hold that Raichs common law necessity defense is not foreclosed by Oakland Cannabis or the Controlled Substances Act, but that the necessity defense does not provide a proper basis for injunctive relief. Second, although changes in state law reveal a clear trend towards the protection of medical marijuana use, we hold that the asserted right has not yet gained the traction on a national scale to be deemed fundamental. Third, we hold that the Controlled Substances Act, a valid exercise of Congresss commerce power, does not violate the Tenth Amendment. Finally, we decline to reach Raichs argument that the Controlled Substances Act, by its terms, does not prohibit her possession and use of marijuana because this argument was not raised below.The Circuit panel denied Raich's request for injunctive relief in part because Raich has not actually been prosecuted for possessing or using marijuana. AP has more.