A federal judge last week refused to prohibit the U.S. government from potentially prosecuting two women with painful medical conditions whose doctors said marijuana is their only medical hope of alleviating their pain.

In the first case of its kind, the two California medical marijuana users sued Attorney General John Ashcroft, seeking a court order allowing them to smoke, grow or obtain marijuana without threat or fear of federal prosecution. U.S. District Judge Martin Jenkins expressed sympathy for the women but said federal law required him to rule against them."

After oral arguments in the case,

defense attorneys were impressed by the Judge's evident grasp of their arguments, his willingness to grapple with the fundamental issues, and his thorough familiarity with all of the legal precedents in the case. "This was the most thorough hearing of medical marijuana given by any court," said defense attorney David Michael, a veteran of numerous medical marijuana cases.

Among the issues debated was the 9th Amendment and

- Whether the right to use medical marijuana for relief of pain and suffering was protected as a fundamental liberty interest by the Ninth amendment and substantive due process. [Randy] Barnett, a leading Ninth Amendment scholar, argued that what was at issue was the right of control one's own body, and that no right could be more fundamental.

The Judge also considered whether the federal Controlled Substance Act violated the 10th Amendment. You can access the briefs and opinion in the case, Raiche v. Ashcroft, here.

We highly recommend reading the opinion for its exposition on the 9th and 10th Amendments, particularly with respect to drug cases.