Is There A Substantive Due Process Right To Medical Marijuana?

[Update: On 2/21/14, the Ninth Circuit summarily denied appellants' petition for rehearing en banc in this order.]

Appellants filed this Petition for Rehearing En Banc yesterday in response to the Ninth Circuit's 1/15/14 decision affirming the dismissal of actions for injunctive relief brought by various medical marijuana collectives, including Sacramento-based El Camino Wellness.  The petition argues that seriously ill Californians have a fundamental right to possess, distribute, and use marijuana as medicine based on Lawrence v. Texas, 539 U.S. 558 (2003), and Raich v. Gonzales, 500 F.3d 850 (9th Cir. 2007) (Raich II), in light of the the deeply rooted history of the use of marijuana as medicine, the super-majority public support for the medical use of marijuana, and the fact that 23 states (with 11 more likely soon) have legalized the medical use of marijuana under state law.

This petition may have some legs.  In Raich II, the Ninth Circuit denied the claim that the Due Process Clause encompasses a right to use marijuana for medical purposes, but the Court noted that the passage of time coupled with changing social views may alter the fundamental right analysis.  500 F.3d at 865-66.  The Ninth Circuit's panel decision here rejected appellants' argument that Raich II should be overruled on the procedural ground that "a prior holding of this court may only be overturned through en banc consideration."   Given the strong recent public support for medical marijuana and the increasing number of state laws favoring medical marijuana since Raich II was decided seven years ago, I expect the petition for rehearing en banc to garner some attention in the Ninth Circuit.


This article was authored by John Balazs and was originally published by Eastern District of California Blog. Mr. Balazs is an attorney in Sacramento, California, specializing in criminal defense, including appeals, habeas corpus, pardons, expungements, and civil forfeiture actions.


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