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SAN FRANCISCO (Reuters) - A California woman with an inoperable brain tumor may not smoke marijuana to ease her pain even though California voters have approved its medicinal use, a U.S. appeals court ruled on Wednesday.
In a much-watched test case, the 9th U.S. Circuit Court of Appeals found there is no fundamental right to marijuana for medical purposes. The ruling agreed with a 2005 U.S. Supreme Court decision.
The split three-judge opinion from Judge Harry Pregerson expressed sympathy for some arguments by plaintiff Angel Raich, 41, an Oakland resident whose doctor testified she could die if she stopped smoking pot. But the ruling backed the 1970 federal Controlled Substances Act barring marijuana.
Raich, who suffers from many ailments, says marijuana keeps her alive by easing pain and bolstering appetite.
"Today I found out I am basically a dead man walking," Raich, who once worked as an accountant and massage therapist, told Reuters. "Today the court said I don't have the constitutional right to basically stay alive."
The mother of two said U.S. officials had never moved to arrest her or bar her from using marijuana and said she would continue to do so every two hours. "I'm damned if I do, damned if I don't," she said.
Raich said she would lobby Congress in Washington to change U.S. law. The court said use of the drug for medical purposes was gaining support but federal law still banned it.
"We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law as well," the judge wrote.
The ruling acknowledged the law could change if legislators reconsider the issue.
"Although that day has not yet dawned, considering that during the last 10 years 11 states have legalized the use of medical marijuana, that day may be upon on us sooner than expected," Pregerson said.
Voters in California, the nation's most populous state, became the first to approve medical marijuana in 1996, putting it in direct conflict with federal law. Gov. Arnold Schwarzenegger has admitting using marijuana in the past.
In another high-profile case involving drugs, a Northern California U.S. District judge found prosecutors had acted vindictively in adding four counts of tax evasion and one count of money laundering against "ganja guru" Ed Rosenthal.
The author of books including "Marijuana Growing Tips," Rosenthal was sentenced in 2003 to one day in prison for violating federal law by growing the plant.
The 9th Circuit overturned that decision last year and ordered a new trial. The prosecutor revived the original marijuana charge and the new counts.
Judge Charles Breyer denied Rosenthal's efforts to dismiss the original marijuana charges, which the author said he would continue to fight.
"Not only is it a vindictive prosecutor, it's a vindictive government and he's representing an attorney general who is out of step with American democracy," Rosenthal, who said he has spent more than $150,000 on his defense, told Reuters.
Additional reporting by Jim Christie