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Backers of medical marijuana tally win in Ninth Circuit

WASHINGTON (BP)–Advocates of marijuana use for medical purposes have gained another victory in the courts.

The U.S. Ninth Circuit Court of Appeals ruled Dec. 16 marijuana may be used medically by those who grow it or obtain it for free. A panel of what is normally considered to be the most liberal appeals court in the country voted 2-1 to overturn a lower-court opinion.

The ruling followed an October decision by the U.S. Supreme Court not to review a Ninth Circuit opinion blocking the federal government from punishing doctors who recommend the use of marijuana to patients. In 2002, a Ninth Circuit panel upheld a federal judge’s permanent injunction barring the federal government from revoking or threatening to revoke a doctor’s license to prescribe drugs if he has recommended marijuana use.

The high court’s hands-off approach means the injunction stands in the Ninth District, which includes nine western states. California and six of the other eight states in the district have laws permitting the medical use of marijuana: Alaska, Arizona, Hawaii, Nevada, Oregon and Washington.

The Ninth Circuit’s latest opinion found the medical use of marijuana — in a state that allows it — is permissible as long as a patient has a doctor’s permission and there is no payment for the drug nor any interstate commerce.

The Controlled Substances Act, the 1970 federal law that outlaws the use of marijuana and other drugs, “cannot constitutionally be applied to the class of activities at issue in this case,” Judge Harry Pregerson wrote in the panel’s opinion. The CSA likely is unconstitutional when applied to the facts involved, he said.

“We find that the appellants’ class of activities — the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician — is, in fact, different in kind from drug trafficking,” Pregerson wrote.

The case, Raich v. Ashcroft, involves two women who have used marijuana for health problems. Angel Raich has used marijuana grown and provided without charge by two friends to treat several serious medical conditions, including a brain tumor. Diane Monson has used marijuana she has grown to treat severe back pain and muscle spasms.

California voters legalized medical marijuana use by approving the Compassionate Use Act in a 1996 referendum.

In 2001, the U.S. Supreme Court ruled against marijuana cooperatives in another case, barring them from distributing the drug for medical purposes.

Opponents of medical marijuana contend the campaign for such use will advance efforts to decriminalize the substance, which is the most commonly abused illicit drug in the country and often leads to the use of even more dangerous drugs.

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