Yesterday the 9th Circuit, in an opinion by Judge Harry Pregerson, affirmed the denial of a preliminary injunction against the enforcement of the Federal Controlled Substances Act to Angel Raich. Raich had previously lost a Supreme Court case in which she had argued that Congress lacked the power under the Commerce Clause to regulate purely intrastate cultivation and use of marijuana for medical purposes. Yesterday's ruling rejected, among other things, a necessity defense and a substantive due process claim.Actually, that's not quite right. The court actually acknowledged the validity at law of Raich's necessity defense but said that it didn't entitle her to a preliminary injunction as opposed to a jury instruction should she be criminally charged. According to the court, Raich might make a miraculous recovery or a medical breakthrough might provide an alternative to marijuana as a means of treating her chronic pain and wasting disorder -- even though the court acknowledged that on the current record she appeared to have a good necessity defense.
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.
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.
That's probably why the two post-Glucksberg cases to recognize "new" substantive due process rights, Troxel v. Granville and Lawrence v. Texas, do not define the right in its narrowest possible terms. Indeed, Justice Kennedy, speaking for the Court in Lawrence, said that doing so in that context was demeaning. Judge Pregerson -- who is as liberal as the day is long -- might have said with justification that the Glucksberg approach is not the law.
For the full version of this argument, see my 1991 book with Larry Tribe.