WASHINGTON -- The Bush administration hit a serious but maybe only temporary snag in federal court yesterday in its efforts to keep marijuana from being used to treat cancer, AIDS, glaucoma and other diseases.
The Drug Enforcement Administration's 1989 ruling keeping marijuana under the strictest controls for drugs was overturned by the U.S. Circuit Court of Appeals here, which ruled that the DEA had relied on faulty criteria to decide that marijuana has no legitimate medical use.
The agency was ordered to come up with a new explanation if it wishes to maintain those controls. In the meantime, the strict controls remain.
Advocates of medical use of marijuana called it "a major victory," as Don Fiedler, national director of the National Organization for the Reform of Marijuana Laws, put it. He and Kevin B. Zeese, counsel of the Drug Policy Foundation, said that millions of sick Americans could benefit from such treatment, including some applications for cancer, AIDS and glaucoma. Now, however, no more than 15 individuals nationwide are getting it under heavily controlled treatment programs authorized by the government.
John C. Lawn, who was DEA administrator when the agency's decision was made 16 months ago, decided that the "vast majority" of doctors did not think the drug was useful in medicine.
He thus refused to take it off of so-called "Schedule I" of the federal Controlled Substances Act -- the category the government uses for what it considers to be the most dangerous drugs, with no "accepted medical use" at all.
A DEA administrative law judge had suggested earlier that the drug be put onto "Schedule II," which would not legalize it for recreational use but would enable doctors to prescribe it. Although Mr. Lawn had accused the judge of being biased in favor of pro-marijuana groups, the Circuit Court implied that Mr. Lawn had used his powers over the judge "with a vengeance."
The court ruled that Mr. Lawn had required the advocates of medical use of marijuana to satisfy three factors that, the Circuit Court said, were impossible to meet. He had demanded proof that marijuana was available for use, that its clinical use was generally recognized and that it was recognized for some use by "a substantial segment" of all doctors in the United States.
But, the court said, with marijuana staying under strict controls, "we are hard pressed to understand how one could show" that those conditions had been met. Saying it did not know how much Mr. Lawn had based his decision on those factors, it sent the case back to the DEA.
Mr. Zeese of the Drug Policy Foundation said his group may ask the DEA to hold new hearings on more recent medical studies showing marijuana's potential as a treatment option. Mr. Fiedler of NORML said that the "research is now in place" to satisfy the DEA's other factors for medical availability.