WASHINGTON - The U.S. Supreme Court agreed on Monday to decide whether a law outlawing marijuana applies to medical use by two seriously ill California women whose doctors recommended cannabis for their pain.

The high court said it would review a ruling that the Controlled Substances Act of 1970 cannot be applied constitutionally to the manufacture, possession and distribution without charge of marijuana for medical use.

The ruling by a U.S. appeals court in San Francisco found the two women had demonstrated a strong likelihood of success on their claim that the federal law, as applied to them, is an unconstitutional use of Congress's power to regulate commerce among the states.

"The cultivation, possession and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity," the appeals court said.

It said marijuana used for medical purposes was different from drug trafficking.

The lawsuit had been brought in 2002 by Angel Raich, who has an inoperable brain tumor and other medical problems, and Diane Monson, who suffers from severe back pain. Their doctors recommended they use marijuana to relieve their pain.

Monson cultivates her own marijuana while two of Raich's caregivers grow the marijuana and provide it to her free of charge. In 2002, Drug Enforcement Administration agents destroyed six cannabis plants seized from Monson's home.

Their lawsuit against Attorney General John Ashcroft and the head of the Drug Enforcement Administration sought a court order barring the government from enforcing the federal drug law, as applied to their conduct.

A federal judge denied their request, but the appeals court overturned the ruling.

Solicitor General Theodore Olson of the Justice Department appealed to the Supreme Court.

He said the appeals court ruling has partially invalidated an act of Congress and "substantially undermines" the government's enforcement of the federal drug law.

California and at least seven other states -- Alaska, Colorado, Hawaii, Maine, Nevada, Oregon and Washington -- have laws allowing medical use of marijuana, Olson said.

Another seven states -- Connecticut, Florida, Missouri, New York, Rhode Island, Vermont and Utah -- are considering adopting their own medical marijuana laws, he said.

He said federal law should take precedence over state law in the case.

Attorneys for the two women urged the Supreme Court to reject the government's appeal. They said the case implicated "the fundamental right to alleviate unnecessary pain and agony and protect bodily integrity."

The justices will hear arguments and then rule in the case during their term that begins in October.

The Supreme Court last ruled on the issue in 2001 when it said California cannabis clubs may not distribute marijuana as a "medical necessity" for seriously ill patients.

© Copyright 2004 Reuters Ltd

###