Pubdate: 18 March 1999 Source: Morning Call (PA) Copyright: 1999 The Morning Call Inc. Contact: Website: Author: Elliot Grossman, of The Morning Call


An Easton man whose wife smoked the drug before she died from AIDS, is a plaintiff in the case.

A class-action lawsuit challenging the federal government's refusal to legalize marijuana for medicine can move ahead, a federal judge has ruled.

U.S. District Senior Judge Marvin Katz concluded that the plaintiffs have a right to delve more deeply into the fairness of a federal program that gives marijuana to some ill people but not others.

More than 160 people -- many with serious illnesses -- are suing the federal government, claiming that marijuana should be legalized for all people who want to use it as medicine. Al Smith of Easton, whose wife, Denise, smoked marijuana before she died from AIDS, is one of the plaintiffs.

People have a right to use marijuana, partly because they have a right to privacy -- the right to use a therapeutic herb without government interference, according to the suit.

The suit refers to a federal program in which government-grown marijuana is provided to patients. The program stopped taking new patients in 1992, and only eight people receive marijuana.

In his 23-page ruling, Katz said the plaintiffs have a right to explore in court whether it is rational for the government to allow marijuana for only some sick people.

But he dismissed other legal claims in the lawsuit, including those challenging the constitutionality of the federal Controlled Substances Act. The act makes it a crime to use, possess or distribute marijuana.

In the March 10 ruling, Katz of Philadelphia said passage of the act was a valid exercise of congressional power.

''The Third Circuit [U.S. Court of Appeals in Philadelphia], along with many other courts, has recognized the interstate nature of the market in illegal drugs and has held that Congress may regulate that market in the same way it may regulate foods and drugs that are legal,'' Katz wrote.

He added, ''The ongoing dispute regarding the safety and usefulness of marijuana, both as a medical aid and otherwise, supports the rationality of the act.''

In dismissing those claims, Katz said he did not want to minimize anyone's suffering or whether their conditions were worsened by the threat of criminal sanctions.

''The difficulty is, however, that even while acknowledging the sympathy that all must feel for people afflicted with painful, debilitating physical ailments that cannot be remedied, the court cannot take the place of Congress,'' he wrote. ''Where reasonable people may differ, the court is bound to defer to the will of the legislature.''

Katz put the case in his June 21 trial pool, meaning it could go to trial then.

Lawyer Lawrence Hirsch of Philadelphia, representing the plaintiffs, predicted the trial would last all summer.

''We have 165 people that want to testify,'' Hirsch said, referring to the plaintiffs. He also said he has 10 physicians who are willing to testify.

Hirsch praised the ruling, even though some of his claims were dismissed.

''His opinion is imbued not only with a judicial understanding but also evidences compassion and sensitivity for the people who are sick and disabled,'' he said.

Hirsch predicted the plaintiffs would win by showing it is unfair for the government to give mari juana to only eight sick people.

''We may end up with a federal government that is providing marijuana not only for eight people but for 8 million people free of charge,'' he said.

The suit alleges that 97 million Americans could benefit from using marijuana therapeutically. Plaintiffs include those who use marijuana to reduce the side effects of cancer chemotherapy, a quadriplegic who says it reduces pain in his legs, and a woman who says it relieves her symptoms from menstruation.

The right to use marijuana -- a plant that grows wild -- is more basic than the right to vote, according to the suit.

''There cannot be any greater injustice than the use of police force and state violence against the person and property of the sick, dying and disabled who seek to preserve their lives through the use of a plant,'' the suit states.

Marijuana is the safest therapeutic substance known, according to the suit.

But the National Drug Control Policy Office, a White House agency, said no scientific study has ever proved that marijuana is effective as medicine. In addition, preliminary studies show that marijuana can cause damage to the brain, heart, lungs and immune system, according to that office.

Last November, voters in Alaska, Arizona, Nevada, Oregon and Washington state passed referendums legalizing marijuana for medicinal uses. Two years earlier, California voters passed a similar referendum.

Barry McCaffrey, who heads the National Drug Control Policy Office, said in his view the referendums do not affect the status of marijuana under federal law -- it is a crime to buy, sell or use marijuana.