A class action lawsuit on behalf of 30 plaintiffs arguing for the right to use medical marijuana survived the government's Motion to Dismiss recently. The action, in United States District Court in Philadelphia, accuses the US government of denying marijuana to patients for political, not medical, reasons.

Philadelphia attorney Larry Hirsch filed the complaint on behalf of 165 patients. The suit argues that marijuana is a valid medicine, citing as evidence the government's own program which provides a steady cannabis supply to eight people. These eight people have licenses, so to speak, to smoke marijuana. The 165 plaintiffs in the present suit argue they have the same right.

The Feds are in the uncomfortable position of arguing against their own program. Uncomfortable for anyone perhaps except the Government. The Compassionate Access program was begun in the late 1970s and operated smoothly until 1992. The government declared marijuana of no medical benefit and shut off entry to new patients. This was all part of Zero Tolerance, which was popular at the time. Pres. Clinton, who smoked pot but didn't complete the act by inhaling, has been more than content to continue his predecessors' failed programs. The government argues that the Compassionate Access, which mails tins of joints to these eight patients monthly, was discontinued because it failed to provide evidence of any therapeutic benefit.

The 165 plaintiffs argue that they have a right to be allowed to enter Compassionate Access or similar program. They argue that they have the right to at least present evidence to demonstrate the therapeutic benefits they themselves have received, and to demand that the government provide an accounting of its reasoning.

Not so--says the government. Arguing the Motion to Dismiss, the Justice Department said the government's statutory policy was entitled to a presumption of validity (the suit should be thrown out because we say so). They also argued that the law enforcement necessity of denying the plaintiffs access to marijuana is obvious. Besides, the complaint is too long (more pages than allowed by the rules, now throw the suit out because we say so).

US District Judge Katz, presiding over the suit, suggested early on that the government settle by allowing the plaintiffs to enter the Compassionate Access program. The Feds of course refused. The Judge asked Defendant USA to produce some actual evidence. The government argued that being against the law is evidence enough. The Judge meanwhile, has continued to express his skepticism of the government's procedural arguments. He asked the government why "shouldn't the plaintiffs have some opportunity" to discover and review the evidence which the Government used to decide to close Compassionate Access, to be sure the closure was "rational"? He denied the Motion to Dismiss and the case has been set for trial in June.

More than 60 of the plaintiffs traveled to Philadelphia and attended the hearing, many in wheelchairs. By all accounts they made a powerful impression. Their testimonies, included in the Complaint, are strong and direct evidence in their favor.

The government is eventually going to have to come up with something better than because we say so. When asked how long that would take, Drug Czar Barry Mcafferey said, "when they pry the fried egg out of my cold dead fingers."