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10th Circuit Court of Appeals (en banc) Affirms Preliminary Injunction
Allowing UDV to Use Ayahuasca
by Erowid
Nov 14, 2004
See also:
Opinion of 10th Circuit Court (Nov 2004)
UDV's Ayahuasca Trial Starts (November, 2001)
Federal Court Approves Preliminary Injunction (Aug 2002)
Federal Appeals Court Approves Preliminary Injunction (Sep 2003)


[UPDATE : July 2010: U.S. DEA and UDV reach agreement on terms of control over UDV ayahuasca. See Agreement on Procedures for Handling UDV Sacrament.]

[UPDATE : Feb 21, 2006: U.S. Supreme Court finds in favor of the UDV in the re-hearing of the preliminary injunction. See UDV Wins Supreme Court Decision on Preliminary Injunction.]

[UPDATE : Nov 1, 2005: U.S. Supreme Court hears oral arguments on preliminary injunction. See High Court Hears Hallucinogenic Tea Case (AP), SCOTUSblog.]

[UPDATE : Apr 18, 2005: U.S. Supreme Court agrees to hear the Government's appeal of the preliminary injunction. Associated Press Story.]

[UPDATE : Feb 10, 2005: U.S. Attorney General's Office has filed another appeal to the U.S. Supreme Court to ask the court to overturn the preliminary injunction. See the submitted brief here.]

[UPDATE : Dec 10, 2004: Supreme Court of U.S. lifts its own stay and allowed the preliminary injunction to continue, thus allowing the UDV Church to continue its use of ayahusca while the case proceeds. AP Story "Court allows church to use hallucinogenic tea".]

[UPDATE : Dec 2, 2004: Supreme Court of U.S. stays the lower courts' decisions to allow a preliminary injunction. See the Drug Policy Alliance Summary. The hearing and further decision on this will take some time.]

On Nov 12, 2004, the full 10th Circuit, sitting en banc, affirmed the decision of the three-judge appellate panel. An "en banc" hearing is when an appellate court re-convenes with the entire set of judges at that level to review a smaller panel's decision. The court re-examined the case to consider whether to jettison the heightened standard for preliminary injunctions that disturb the status quo. A majority of the court concluded that there are reasons for courts to disfavor such preliminary injunctions, and therefore reaffirmed the 10th Circuit's traditional rule (with slight modification). A different majority concluded that, even under the heightened standard, UDV was entitled to a preliminary injunction against enforcement of laws against the possession and use of hoasca.

The text of the en banc decision can be found here.

This decision is not terribly interesting beyond its simple affirmation of the earlier decision, but the text contains a hint of the future of the arguments in the case when it finally reaches an actual hearing. Some of the dissenting judges felt very strongly that the UDV would not be likely to prevail on the merits of the case, when it finally reaches the court. Interestingly, one judge compared the rules for granting a preliminary injunction to the Hippocratic Oath ("first do no harm"):

There is no reason to think that the "general maxim" that "the purpose of a preliminary injunction is to preserve the status quo between the parties pending a full trial on the merits" is one that "should not be taken merely at face value" or disregarded except insofar as it "impacts the balance of harms between the parties and the public interest." Opinion of Seymour, J., at 6, 7. A judicial version of Hippocrates' ancient injunction to physicians ? above all, to do no harm ? counsels against forcing changes before there has been a determination of the parties' legal rights. The settled rule of our tradition is that losses should remain where they fall until an adequate legal or equitable justification for shifting them has been demonstrated.
McCONNELL J, Nov 2004 - UDV v Ashcroft


But the issue of who is being harmed and what is the status quo is one that other justices dispute. One side argues that the society is done harm by allowing the subversion of the Controlled Substances Act and that the status quo is that DMT-containing substances are not legal in the U.S., no matter what the religious justification. The other side argues that the status quo is the religious organization's law-abiding practice of their faith and harm is done to them to force them to stop and little harm is done to others to let them do so. The case is not terribly interesting, because it is simply a re-hearing of the same appelate court's decision from a year before.

It will be some time before a final decision is reached on the many issues raised by this case. As of November 2004, the DEA is barred from seizing the UDV's hoasca in the U.S.

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