December 9, 1999

Patients' Federal Class-Action Suit Dismissed

        Dec. 9, 1999, Philadelphia, PA:  A federal class-action law suit challenging the federal government's ban on the medical use of marijuana, brought by more than 160 patients, was dismissed by U.S. District Judge Marvin Katz on Dec. 1.  Judge Katz granted the government's motion for summary judgment, finding that the government had a "rational basis" for continuing to distribute marijuana to eight patients while refusing to provide it to the plaintiffs, and that such refusal did not constitute a violation of the equal protection clause of the U.S. Constitution.
        The complaint, originally filed on July 3, 1998, alleged the Controlled Substances Act was unconstitutional as applied to marijuana and raised an equal protection challenge to both the scheduling of the drug Marinol and the refusal of the government to provide marijuana to the plaintiffs under the "compassionate use" program.  On March 10, 1999, the court dismissed all of plaintiffs' claims except the claim regarding access to the "compassionate use" program.
        The December 1 decision began by reiterating an earlier ruling that "the classification in this case does not 'burden a fundamental right' or 'target a suspect class.'  ... A classification that does not affect a fundamental right or a suspect class cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose."
        "Plaintiffs ... bear a very heavy burden in challenging a government decision under rational basis review," Judge Katz wrote.  "Although, in this case, the government produced materials explaining the basis for its decisions, it has no burden to produce evidence demonstrating the objective rationality of the actions in question; even 'rational speculation unsupported by evidence or empirical data' is enough to uphold the classification at issue.  ... The burden is on the plaintiffs, as the party challenging the classification, 'to negate every conceivable basis which might support it, whether or not the basis has a foundation in the record.'  ... Plaintiffs have not met their burden, and the classification at issue here passes muster under rational basis review."
        "The issue is not whether the government's position is correct but whether it is rational," Judge Katz concluded.  "We have learned a lesson from history that courts' substituting their own judgments for the law often involves significant risk, and, in this case, the court cannot say that the government acted irrationally."
        According to Judge Katz, "the government's submissions suggest at least four bases for the termination of the compassionate use program: bad public policy, bad medicine, a lack of marijuana for the remaining patients, and the existence of alternative treatments.  The government explains its decision to continue providing marijuana only to the remaining individuals in the program as a means of balancing the government's desire to avoid distributing marijuana to increasing numbers of individuals with the interests of those who had already relied upon the drug.  These justifications provide a rational basis for the government's decisions."
        "While there is certainly a disparity in treatment in this case, that disparity is neither 'invidious nor irrational," Judge Katz wrote.
        The plaintiffs' attorney, Lawrence Hirsch of Philadelphia, had argued that, "If the government allows eight people to get it (government distributed marijuana), then all people who need it should be able to get it."
        The federal Compassionate Investigational New Drug program began distributing marijuana cigarettes to select patients in 1978.  The program ceased accepting new applicants in 1992, but continues to supply 300 marijuana cigarettes monthly to eight patients suffering from diseases such as glaucoma and epilepsy.
        Judge Katz conceded, "Providing marijuana to eight people without legal consequence is somewhat strange.  Even odder is the government's having provided marijuana to a small group of people over the years in the compassionate use program without having obtained a single useful clinical result as to the utility or safety of marijuana as a medicine to alleviate the symptoms of illness....  The government has finally instituted a program to make its supply of marijuana available to serious researchers to determine the utility of the substance as medicine based on scientific empiricism rather than shibboleth.  In time, knowledge sometimes has a chance to prevail over ignorance."
        He continued, "Given the recent changes in government policy and the flawed development of the compassionate use program, it is not beyond the bounds of rational policy to limit provision of marijuana as the government has done.  One hopes that both the advocates and opponents of medical marijuana will allow science to substitute for slogans."
        "While this decision is disappointing, established law regarding the equal protection clause leaves little room to argue the point," said Tom Dean, Esq., NORML Foundation Litigation Director.  "I can't say I'm surprised by the outcome."
        For more information, please contact Tom Dean, Esq., NORML Foundation Litigation Director, at (202) 483-5500 or Lawrence Hirsch, Esq. at (215) 496-9530.

New Zealand NORML Founder Elected To Parliament

        Dec. 9, 1999, Wellington, New Zealand:  Nandor Tanzcos, Founder of New Zealand NORML was elected to Parliament as a member of the Green Party this week.
        Tanzcos, New Zealand's first Rastafarian Member of Parliament, is one of six Green Party members elected to the 120 seat legislative body.  His inclusion in Parliament is being seen as a certain boost for the cannabis law reform movement in New Zealand.  Both the Labour and Alliance parties have announced their intent to introduce marijuana decriminalization initiatives.
        Tanzcos said he will not tone down his image when he enters Parliament, but he is having a hemp suit made for him to fulfill the dress code that MPs must wear a jacket and tie in the debating chamber.
        "The real challenge is to get in there and do the good work, and let people see that we are competent and serious, and we can fulfill our function here," said Tanzcos.
        For more information, please contact New Zealand NORML at (011) 64-9-302-5255 or email: hempstor@ihug.co.nz.

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