Pubdate: Thur,11 March 1999
Source: Philadelphia Inquirer (PA)
Copyright: 1999 Philadelphia Newspapers Inc.
Contact:  http://www.phillynews.com/
Forum: http://interactive.phillynews.com/talk-show/
Author: Joseph A. Slobodzian INQUIRER STAFF WRITER

JUDGE DECLINES TO DISMISS MEDICAL MARIJUANA LAWSUIT

Plaintiffs seeking to legalize the drug for medicinal use will get their day
in federal court.

A federal judge yesterday refused to dismiss a lawsuit that seeks to
legalize the medical use of marijuana, ruling that the plaintiffs deserved
the chance to prove the government had no reason to deny the drug to
seriously ill people.

"The answer must come from facts, not the abstractions and dogma presently
in the record," wrote U.S. District Judge Marvin Katz in a 25-page opinion
and order.

Katz's ruling keeps alive a class-action lawsuit that many legal experts
assumed had no chance of success when it was filed in July.

Justice Department spokesman Brian Steel said lawyers had not had the chance
to review Katz's ruling and could not comment. "Our basic position is that
marijuana remains an illegal drug," Steel said.

Lawrence Elliott Hirsch, the Center City lawyer who filed the suit on behalf
of 165 people nationwide, praised the opinion as a "tremendous job of
analysis. . . . Whatever the ultimate outcome, the judge has done an
excellent job of framing the issues." Some medical researchers have said
marijuana seems to help in treating glaucoma and combating the nausea caused
by drugs used in treating cancer and AIDS. Although a synthetic form of a
key compound of marijuana has been marketed as the prescription drug
Marinol, the lawsuit contends it is not as effective as smoking the herb
itself.

In some ways, Katz handed victories to both sides. He denied Hirsch's motion
for a judgment in favor of the plaintiffs, and granted the government's
motion to dismiss Hirsch's most novel claim -- that, unlike the 18th
Amendment's ill-fated ban on alcohol except for medicinal use, Congress
prohibited marijuana improperly in the Controlled Substances Act of 1970.

Katz wrote that numerous federal courts have upheld the 1970 law.

But the judge said it was premature to dismiss the plaintiffs' claim that
they were being denied equal protection of the law.

Despite the longstanding prohibition of marijuana, the lawsuit contends, the
government in 1978 settled a federal lawsuit by implementing a limited
"compassionate use" program in which as many as 300 government-grown
marijuana cigarettes a month were provided to people found to have serious
medical conditions that benefited from marijuana use.

About half of the 14 people admitted into the program -- it was closed to
new participants in 1992 -- still receive the drug. "The court cannot say,"
Katz wrote, "that the government's decision to give marijuana to several
people who are ill and the government's refusal to give it to the plaintiffs
who are also ill is rational as a matter of law when plaintiffs have not had
the opportunity to try to prove otherwise."

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