updated 6/28/2004 10:39:28 AM ET 2004-06-28T14:39:28

The Supreme Court said Monday it will consider whether sick people who smoke pot on a doctor’s orders are subject to a federal ban on marijuana.

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The court agreed to hear the Bush administration’s appeal of a case it lost last year involving two California women who say marijuana is the only drug that helps alleviate their chronic pain and other medical problems.

The high court will hear the case sometime next winter. It was among eight new cases the court added to its calendar for the coming term. The current term is expected to end this week.

The marijuana case came to the Supreme Court after the San Francisco-based 9th U.S. Circuit Court of Appeals ruled in December that a federal law outlawing marijuana does not apply to California patients whose doctors have prescribed the drug.

'Clearly distinct' from illicit market
In its 2-1 decision, the appeals court said prosecuting medical marijuana users under the federal Controlled Substances Act is unconstitutional if the marijuana is not sold, transported across state lines or used for non-medicinal purposes.

Judge Harry Pregerson wrote for the appeals court majority that smoking pot on the advice of a doctor is “different in kind from drug trafficking.” The court added that “this limited use is clearly distinct from the broader illicit drug market.”

In its appeal to the justices, the government argued that state laws making exceptions for “medical marijuana” are trumped by federal drug laws.

Congress passed the Controlled Substances Act to control “all manufacturing, possession and distribution of any” drug it lists, Bush administration Supreme Court lawyer Theodore Olson wrote.

“That goal cannot be achieved if the intrastate manufacturing, possession and distribution of a drug may occur without any federal regulation.”

California’s 1996 medical marijuana law allows people to grow, smoke or obtain marijuana for medical needs with a doctor’s recommendation. Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington state have laws similar to California. Thirty-five states have passed legislation recognizing marijuana’s medicinal value.

Doctors' recommendation
In states with medical marijuana laws, doctors can give written or oral recommendations on marijuana to patients with cancer, HIV and other serious illnesses.

The case concerned two seriously ill California women, Angel Raich and Diane Monson. The two had sued Attorney General John Ashcroft, asking for a court order letting them smoke, grow or obtain marijuana without fear of federal prosecution.

Raich, a 38-year-old Oakland woman suffering from ailments including scoliosis, a brain tumor, chronic nausea, fatigue and pain, smokes marijuana every few hours. She said she was partly paralyzed until she started smoking pot.

In 2001, the Supreme Court ruled that members-only clubs that had formed to distribute medical marijuana could not claim their activity was protected by “medical necessity,” even if patients have a doctor’s recommendation to use the drug.

Last fall, however, the high court refused to hear a separate Bush administration request to consider whether the federal government can punish doctors for recommending the drug to sick patients.

The case is Ashcroft v. Raich, 03-1454.

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