FEDERAL JUDGE LETS LAWSUIT ON MEDICAL MARIJUANA GO ON

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.