500 F.3d 850 (2007)

Angel McClary RAICH; John Doe, Number One; John Doe, Number Two, Plaintiffs-Appellants,
v.
Alberto R. GONZALES, Attorney General, as United States Attorney General; *851 Karen Tandy,^[*] as Administrator of the Drug Enforcement Administration, Defendants-Appellees.

No. 03-15481.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 27, 2006. Filed March 14, 2007.

*852 *853 *854 Robert A. Raich, (briefed) Oakland, CA and Randy E. Barnett, (argued) Boston University School of Law, Boston, MA, for the plaintiffs-appellants.

Mark T. Quinlivan, Assistant United States Attorney, Boston, MA, for the defendants-appellees.

Before PREGERSON, C. ARLEN BEAM,^[**] and PAEZ, Circuit Judges.

PREGERSON, Circuit Judge.

Plaintiff-Appellant Angel McClary Raich ("Raich") is a seriously ill individual who uses marijuana for medical purposes on the recommendation of her physician. Such use is permitted under California law. The remaining plaintiffs-appellants assist Raich by growing marijuana for her treatment.

Appellants seek declaratory and injunctive relief based on the alleged unconstitutionality of the Controlled Substances Act, and a declaration that medical necessity precludes enforcement of the Controlled Substances Act against them. On March 5, 2003, the district court denied appellants' motion for a preliminary injunction. We hear this matter on remand following the Supreme Court's decision in Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). For the reasons set forth below, we affirm the district court.

STATUTORY SCHEMES

I. The Controlled Substances Act

Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236, to create a comprehensive drug enforcement regime it called the Controlled Substances Act, 21 U.S.C. § 801-971. Congress established five "schedules" of "controlled substances." See 21 U.S.C. § 802(6). Controlled substances are placed on a particular schedule based on their potential for abuse, their accepted medical use in treatment, and the physical and psychological consequences of abuse of the substance. See 21 U.S.C. § 812(b). Marijuana is a Schedule I controlled substance. 21 U.S.C. § 812(c), Sched. I(c)(10). For a substance to be designated a Schedule I controlled substance, it must be found: (1) that the substance "has a high potential for abuse"; (2) that the substance "has no currently accepted medical use in treatment in the United States"; and (3) that "[t]here is a lack of accepted safety for use of the drug or other substance under medical supervision." 21 U.S.C. § 812(b)(1). The Controlled Substances Act sets forth *855 procedures by which the schedules may be modified. See 21 U.S.C. § 811(a).

Under the Controlled Substances Act, it is unlawful to knowingly or intentionally "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance," except as otherwise provided in the statute. 21 U.S.C. § 841(a)(1). Possession of a controlled substance, except as authorized under the Controlled Substances Act, is also unlawful. See 21 U.S.C. § 844(a).

II. California's Compassionate Use Act of 1996

California voters passed Proposition 215 in 1996, which is codified as the Compassionate Use Act of 1996 ("Compassionate Use Act"). See Cal. Health & Safety Code § 11362.5. The Compassionate Use Act is intended to permit Californians to use marijuana for medical purposes by exempting patients, primary caregivers, and physicians from liability under California's drug laws. The Act explicitly states that its purpose is to

ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

Id. § 11362.5(b)(1)(A). Another purpose of the Compassionate Use Act is "[t]o ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction." Id. § 11362.5(b)(1)(B). The Compassionate Use Act strives "[t]o encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana." Id. § 11362.5(b)(1)(C).

To achieve its goal, the Compassionate Use Act exempts from liability under California's drug laws "a patient, or . . . a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." Id. § 11362.5(d).

FACTUAL & PROCEDURAL HISTORY

Appellant Angel McClary Raich is a Californian who uses marijuana for medical treatment. Raich has been diagnosed with more than ten serious medical conditions, including an inoperable brain tumor, a seizure disorder, life-threatening weight loss, nausea, and several chronic pain disorders. Raich's doctor, Dr. Frank Henry Lucido, testified that he had explored virtually every legal treatment alternative, and that all were either ineffective or resulted in intolerable side effects. Dr. Lucido provided a list of thirty-five medications that were unworkable because of their side effects.

Marijuana, on the other hand, has proven to be of great medical value for Raich. Raich has been using marijuana as a medication for nearly eight years, every two waking hours of every day. Dr. Lucido states that, for Raich, foregoing marijuana treatment may be fatal. As the district court put it, "[t]raditional medicine has utterly failed[Raich]." Raich v. Ashcroft, 248 F.Supp.2d 918, 921 (N.D.Cal.2003).

Raich is unable to cultivate marijuana for her own use. Instead, Raich's caregivers, John Doe Number One and John Doe Number Two, cultivate it for her. They *856 provide marijuana to Raich free of charge. They have joined this action as plaintiffs anonymously in order to protect Raich's access to medical marijuana.

This action arose in response to a law enforcement raid on the home of another medical marijuana user, former plaintiff-appellant Diane Monson.^[1] On August 15, 2002, Butte County Sheriff's Department deputies, the Butte County District Attorney, and agents from the federal Drug Enforcement Agency ("DEA") came to Monson's home. After DEA agents took control of Monson's six marijuana plants, a three-hour standoff between state and federal authorities ensued. The Butte County deputies and district attorney concluded that Monson's use of marijuana was legal under the Compassionate Use Act. The DEA agents, after conferring with the U.S. Attorney for the Eastern District of California, concluded that Monson possessed the plants in violation of federal law. The DEA agents seized and destroyed Monson's six marijuana plants.

Fearing raids in the future and the prospect of being deprived of their medicinal marijuana, Raich, Monson, and the John Doe plaintiffs sued the United States Attorney General and the Administrator of the DEA in federal district court on October 9, 2002. The suit sought declaratory and injunctive relief. Specifically, plaintiffs-appellants argued: (1) that the Controlled Substances Act was unconstitutional as applied to them because the legislation exceeded Congress's Commerce Clause authority; (2) that through the Controlled Substances Act, Congress impermissibly exercised a police power that is reserved to the State of California under the Tenth Amendment; (3) that the Controlled Substances Act unconstitutionally infringed their fundamental rights protected by the Fifth and Ninth Amendments; and (4) that the Controlled Substances Act could not be enforced against them because their allegedly unlawful conduct was justified under the common law doctrine of necessity.

On October 30, 2002, the plaintiffs-appellants moved for a preliminary injunction. On March 4, 2003, the district court denied the motion by a published order. See Raich v. Ashcroft, 248 F.Supp.2d 918. The district court found that, "despite the gravity of plaintiffs' need for medical cannabis, and despite the concrete interest of California to provide it for individuals like them," the appellants had not established the required "`irreducible minimum' of a likelihood of success on the merits under the law of this Circuit." Id. at 931.

On December 16, 2003, we reversed and remanded this matter to the district court to enter a preliminary injunction. See Raich v. Ashcroft, 352 F.3d 1222, 1235 (9th Cir.2003). We held that the plaintiffs-appellants had demonstrated a strong likelihood of success on the merits of their claim that the Controlled Substances Act, as applied to them, exceeded Congress's Commerce Clause authority. See id. at 1234. We did not reach plaintiffs-appellants' remaining arguments in favor of the preliminary injunction. See id. at 1227. The Government timely petitioned the Supreme Court for a writ of certiorari. The Supreme Court granted certiorari on June 28, 2004. See Ashcroft v. Raich, 542 U.S. 936, 124 S.Ct. 2909, 159 L.Ed.2d 811 (2004).

On June 6, 2005, the Supreme Court vacated our opinion and held that Congress's Commerce Clause authority includes the power to prohibit purely intrastate cultivation and use of marijuana. See Gonzales v. Raich, 125 S.Ct. at 2215. The Court remanded the case to us to address plaintiffs-appellants's remaining *857 legal theories in support of a preliminary injunction. See id. On remand, Raich renews her claims based on common law necessity, fundamental rights protected by the Fifth and Ninth Amendments, and rights reserved to the states under the Tenth Amendment. She also argues for the first time that the Controlled Substances Act, by its terms, does not prohibit her from possessing and using marijuana if permitted to do so under state law. We have jurisdiction over this interlocutory appeal under 28 U.S.C. § 1292(a)(1).

STANDING & STANDARD OF REVIEW

To satisfy the requirements of constitutional standing, "the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Mujahid v. Daniels, 413 F.3d 991, 994 (9th Cir.2005) (citing Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)). Furthermore, the injury must be: (1) concrete and particularlized, and (2) actual or imminent, not conjectural or hypothetical. See United States v. Antelope, 395 F.3d 1128, 1132 (9th Cir.2005).

We are convinced that the requirements of constitutional standing have been met here.^[2] Although Raich has not suffered any past injury, she is faced with the threat that the Government will seize her medical marijuana and prosecute her for violations of federal drug law. The threat posed by deprivation of her medical treatment is serious and concrete: Raich's doctor testified that foregoing medical marijuana treatment might be fatal. The threat is not speculative or conjectural: DEA agents previously seized and destroyed the medical marijuana of former plaintiff-appellant Diane Monson. Monson's withdrawal from this action does not change the fact that DEA agents have— and may again—seize and destroy medical marijuana possessed by gravely ill Californians, including Raich. Finally, it is clear that Raich's threatened injury may be fairly traced to the defendants, and that a favorable injunction from this court would redress Raich's threatened injury.

A district court's decision regarding preliminary injunctive relief is subject to limited review. See Harris v. Bd. of Supervisors, 366 F.3d 754, 760 (9th Cir.2004). The court should be reversed only if it abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. See id. A preliminary injunction must be supported by findings of fact, reviewed for clear error. See Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1239 (9th Cir. 2001). The district court's conclusions of law are reviewed de novo. See Brown v. Cal. Dep't of Transp., 321 F.3d 1217, 1221 (9th Cir.2003).

DISCUSSION

"The standard for granting a preliminary injunction balances the plaintiff's likelihood of success against the relative hardship to the parties." Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir.2003). We have two different criteria for determining whether preliminary injunctive relief is warranted. "Under the traditional criteria, a plaintiff must show (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to[the] plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases)." See Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1120 (9th Cir. 2005) (internal quotations omitted). We *858 also use an alternative test whereby a court may grant the injunction if the plaintiff demonstrates either: (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in his favor. See id.

The two alternative formulations "represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. They are not separate tests but rather outer reaches of a single continuum." Baby Tam & Co. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir. 1998) (internal quotation marks and citations omitted).

I. Common Law Necessity

Raich first argues that she has a likelihood of success on the merits of her claim that the common law doctrine of necessity bars the federal government from enforcing the Controlled Substances Act against her medically-necessary use of marijuana.^[3] Raich avers that she is faced with a choice of evils: to either obey the Controlled Substances Act and endure excruciating pain and possibly death, or violate the terms of the Controlled Substances Act and obtain relief from her physical suffering.

The necessity defense "traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils" and the actor had no "reasonable, legal alternative to violating the law." United States v. Bailey, 444 U.S. 394, 410, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980); see also 2 Wayne R. LaFave, Substantive Criminal Law § 10.1 at 116 (2d ed. 2003 & Supp.2005). As we have recognized,

In some sense, the necessity defense allows us to act as individual legislatures, amending a particular criminal provision or crafting a one-time exception to it, subject to court review, when a real legislature would formally do the same under those circumstances. For example, by allowing prisoners who escape a burning jail to claim the justification of necessity, we assume the lawmaker, confronting this problem, would have allowed for an exception to the law proscribing prison escapes.

United States v. Schoon, 971 F.2d 193, 196-97 (9th Cir.1991).

The Supreme Court has recognized that a common law necessity defense exists even when a statute does not explicitly include the defense. See Bailey, 444 U.S. at 425, 100 S.Ct. 624 (Blackmun, J., dissenting) (having "no difficulty in concluding that Congress intended the defenses of duress and necessity to be available" to prison escape defendant); id. at 415 n. 11, 100 S.Ct. 624 (Rehnquist, J., majority opinion) (noting that the majority's "principal difference with the dissent, therefore, is not as to the existence of [the necessity] defense but as to the importance of surrender as an element of it").^[4]

*859 A. Whether Raich Satisfies the Requirements of the Common Law Necessity Defense^[5]

Here, although we ultimately conclude that Raich is not entitled to injunctive relief on the basis of her common law necessity claim, we briefly note that, in light of the compelling facts before the district court, Raich appears to satisfy the threshold requirements for asserting a necessity defense under our case law. We have set forth the following general standards for a necessity defense:

As a matter of law, a defendant must establish the existence of four elements to be entitled to a necessity defense: (1) that he was faced with a choice of evils and chose the lesser evil; (2) that he acted to prevent imminent harm; (3) that he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and (4) that there were no other legal alternatives to violating the law.

United States v. Aguilar, 883 F.2d 662, 693 (9th Cir.1989).

We first ask whether Raich was faced with a choice of evils and whether she chose the lesser evil. Raich's physician presented uncontroverted evidence that Raich "cannot be without cannabis as medicine" because she would quickly suffer "precipitous medical deterioration" and "could very well" die. If Raich obeys the Controlled Substances Act she will have to endure intolerable pain including severe chronic pain in her face and jaw muscles due to temporomandibular joint dysfunction and bruxism, severe chronic pain and chronic burning from fibromyalgia that forces her to be flat on her back for days, excruciating pain from non-epileptic seizures, heavy bleeding and severely painful menstrual periods due to a uterine fibroid tumor, and acute weight loss resulting possibly in death due to a life-threatening wasting disorder.^[6] Alternatively, Raich can violate the Controlled Substances Act and avoid the bulk of those debilitating *860 pains by using marijuana. The evidence persuasively demonstrates that, in light of her medical condition, Raich satisfies the first prong of the necessity defense.

We next ask whether Raich is acting to prevent imminent harm. All medical evidence in the record suggests that, if Raich were to stop using marijuana, the acute chronic pain and wasting disorders would immediately resume. The Government does not dispute the severity of her conditions or the likelihood that her pain would recur if she is deprived of marijuana. Raich has therefore established that the harm she faces is imminent.

Prong three asks whether Raich reasonably anticipated a causal connection between her unlawful conduct and the harm to be avoided. We believe that Raich's belief in the causal connection is reasonable. Here, Raich's licensed physician testified to the causal connection between her physical condition and her need to use marijuana. The Government did not dispute this medical evidence. Because Raich has clearly demonstrated the medical correlation, she has satisfied prong three.^[7]

Finally, we ask whether Raich had any legal alternatives to violating the law. Dr. Lucido's testimony makes clear that Raich had no legal alternatives: Raich "has tried essentially all other legal alternatives to cannabis and the alternatives have been ineffective or result in intolerable side effects." Raich's physician explained that the intolerable side effects included violent nausea, shakes, itching, rapid heart palpitations, and insomnia. We agree that Raich does not appear to have any legal alternative to marijuana use.^[8]

Although Raich appears to satisfy the factual predicate for a necessity defense, it is not clear whether the Supreme Court's decision in United States v. Oakland Cannabis Buyers' Cooperative forecloses a necessity defense to a prosecution of a seriously ill defendant under the Controlled Substances Act. 532 U.S. 483, 484 n. 7, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001). Similarly, whether the Controlled Substances Act encompasses a legislative "determination of values," id. at 491, 121 S.Ct. 1711, that would preclude a necessity defense is also an unanswered question. These are difficult issues, and in light of our conclusion below that Raich's necessity claim is best resolved within the context of a specific prosecution under the Controlled Substances Act, where the issue would be fully joined, we do not attempt to answer them here.

B. Whether a Viable Necessity Defense Gives Raich a Likelihood of Success on the Merits on this Action for Injunctive Relief

Irrespective of the compelling factual basis for Raich's necessity claim, whether Raich has a likelihood of success on the merits in this action for injunctive relief is a different question. We conclude *861 that Raich has not demonstrated that she will likely succeed in obtaining injunctive relief on the necessity ground.

The necessity defense is an affirmative defense that removes criminal liability for violation of a criminal statute. See 2 LaFave, Substantive Criminal Law § 9.1(a) (2d ed. 2003 & Supp.2005). Necessity is essentially a justification for the prohibited conduct: the "harm caused by the justified behavior remains a legally recognized harm that is to be avoided whenever possible." Paul H. Robinson, Criminal Law Defenses § 24(a) (1984 & Supp.2006-2007). A common law necessity defense thus singles out conduct that is "therwise criminal, which under the circumstances is socially acceptable and which deserves neither criminal liability nor even censure." LaFave, Substantive Criminal Law § 9.1(a)(3) (2d ed. 2003 & Supp.2005) (quotation omitted). The necessity defense serves to protect the defendant from criminal liability.

Though a necessity defense may be available in the context of a criminal prosecution, it does not follow that a court should prospectively enjoin enforcement of a statute. Raich's violation of the Controlled Substances Act is a legally recognized harm, but the necessity defense shields Raich from liability for criminal prosecution during such time as she satisfies the defense. Thus, if Raich were to make a miraculous recovery that obviated her need for medical marijuana, her necessity-based justification defense would no longer exist. Similarly, if Dr. Lucido found an alternative treatment that did not violate the law—a legal alternative to violating the Controlled Substances Act— Raich could no longer assert a necessity defense. That is to say, a necessity defense is best considered in the context of a concrete case where a statute is allegedly violated, and a specific prosecution results from the violation. Indeed, oversight and enforcement of a necessity defense-based injunction would prove impracticable: the ongoing vitality of the injunction could hinge on factors including Raich's medical condition or advances in lawful medical technology. Nothing in the common law or our cases suggests that the existence of a necessity defense empowers this court to enjoin the enforcement of the Controlled Substances Act as to one defendant.

Because common law necessity prevents criminal liability, but does not permit us to enjoin prosecution for what remains a legally recognized harm, we hold that Raich has not shown a likelihood of success on the merits on her medical necessity claim for an injunction.^[9]

II. Substantive Due Process

Raich contends that the district court erred by failing to protect her fundamental rights. Her argument focuses on unenumerated rights protected by the Fifth and Ninth Amendments to the Constitution under a theory of substantive due process.^[10]

A. Substantive Due Process, Generally

Although the Fifth Amendment's Due Process Clause states only that "[n]o *862 person shall . . . be deprived of life, liberty, or property, without due process of law," see U.S. Const. amend. V, it unquestionably provides substantive protections for certain unenumerated fundamental rights.^[11] "The Due Process Clause guarantees more than fair process, and the `liberty' it protects includes more than the absence of physical restraint." Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997); see also Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833, 847, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ("It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight Amendments to the Constitution. But of course this Court has never accepted that view." (internal citation omitted)). As Justice Harlan put it over forty years ago:

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.

Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting) (citations omitted); see also Casey, 505 U.S. at 849, 112 S.Ct. 2791 (noting that Justice Harlan's position was adopted by the Court in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)). These contentions find support in the Ninth Amendment, which provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. Const. amend. IX.

In Glucksberg, the Supreme Court set forth the two elements of the substantive due process analysis.

First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition," and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed." Second, we have required in substantive-due-process cases a "careful description" of the asserted fundamental liberty interest.

Glucksberg, 521 U.S. at 720-21, 117 S.Ct. 2258 (citations omitted).

The Supreme Court has a long history of recognizing unenumerated fundamental rights as protected by substantive due process, *863 even before the term evolved into its modern usage. See, e.g., Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (to have an abortion); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (same); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (to use contraception); Griswold, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (to use contraception, to marital privacy); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (to marry); Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (to bodily integrity); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (to have children); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (to direct the education and upbringing of one's children); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (same). But the Court has cautioned against the doctrine's expansion. See Glucksberg, 521 U.S. at 720, 117 S.Ct. 2258 (stating that the Court must restrain the expansion of substantive due process "because guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended" and because judicial extension of constitutional protection for an asserted substantive due process right "place[s] the matter outside the arena of public debate and legislative action" (citations omitted)); Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (noting that "[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field" (quoting Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992))).

Bearing that rubric in mind, we consider Raich's substantive due process claim. In the present case, it is helpful to begin with the second step—the description of the asserted fundamental right—before determining whether the right is deeply rooted in this nation's history and traditions and implicit in the concept of ordered liberty.

B. Breadth of the Fundamental Right

Glucksberg instructs courts to adopt a narrow definition of the interest at stake. See 521 U.S. at 722, 117 S.Ct. 2258 ("[W]e have a tradition of carefully formulating the interest at stake in substantive-due-process cases."); see also Flores, 507 U.S. at 302[, 113 S.Ct. 1439] (noting that the asserted liberty interest must be construed narrowly to avoid unintended consequences). Substantive due process requires a "careful description of the asserted fundamental liberty interest." Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258 (quotation and citations omitted).

Glucksberg involved a substantive due process challenge to Washington state's ban on assisted suicide. See id. at 705-06, 117 S.Ct. 2258. The Court in Glucksberg rejected the suggestion that the interest at stake was the "right to die" or "the right to choose a humane, dignified death," and instead held that the narrow question before the Court was "whether the `liberty' specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so." Id. at 722-23,