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Court protects doctors who recommend marijuana

Court protects doctors who recommend marijuana


October 30, 2002
Sentinel staff and wire report

SAN FRANCISCO - A federal appeals court ruled for the first time
Tuesday that the government cannot revoke the prescription-drug
licenses of doctors who recommend marijuana to sick patients.
The court also ruled that the Justice Department may not investigate
doctors merely for recommending marijuana, since this would interfere
with the free-speech rights of doctors and patients.
“An integral component of the practice of medicine is the
communication between doctor and a patient. Physicians must be
able to speak frankly and openly to patients,” Chief Circuit Judge Mary
Schroeder said.
The unanimous opinion by a three-judge panel of the 9th U.S. Circuit
Court of Appeals upholds a 2-year-old court order that prohibited
such federal action before any doctors’ licenses were revoked.
Federal prosecutors argued that doctors who recommend marijuana
use are interfering with the drug war and circumventing the
government’s judgment that the illegal drug has no medical benefit.
But the San Francisco-based court, noting that doctors are not
allowed to dispense marijuana themselves, said physicians had a
constitutional right to speak candidly with their patients about
marijuana without fear of government sanctions.
Doctors who recommend marijuana in the eight states that have
medical-marijuana laws “will make it easier to obtain marijuana in
violation of federal law,” government attorney Michael Stern had said.
States allowing medical marijuana are Alaska, Arizona, California,
Hawaii, Maine, Nevada, Oregon and Washington. All but Maine fall
under the 9th Circuit jurisdiction.
The Justice Department had no immediate comment.
An area physician who has recommended medical marijuana said the
ruling could make doctors more comfortable to talk about that
“That’s what I hope this will accomplish,” said Dr. Arnold Leff of Santa
Cruz. “A lot of physicians will not take the risk of losing their DEA
That forces patients to seek doctors who are known to make such
recommendations but who don’t have a long history with that patient,
Leff said.
“We’re pretty careful about how we approach it,” said Leff, who has
made dozens of recommendations. “We strive to approach it from a
medical standpoint.”
Valerie Corral, executive director of the Wo/men’s Alliance for Medical
Marijuana, was one of the plaintiffs in the case, which was filed in
1997. Corral said she was elated by the ruling, saying it changes the
setting of the medical- marijuana debate.
“It frames the issue in a medical perspective and takes it away from
criminality,” Corral said.
Lawyer Ben Rice of Santa Cruz said the ruling, though still subject to
appeal, should help doctors be more willing to make a
recommendation. Rice said there were about 100 doctors in the area
who have recommended marijuana to patients.
In a concurring opinion, Judge Alex Kozinski wrote that there was a
wealth of evidence that may support marijuana use for sick patients,
and said the government has attacked doctors as a means to
paralyze California’s medical marijuana laws.
“The federal government’s policy deliberately undermines the state
by incapacitating the mechanism the state has chosen for separating
what is legal from what is illegal under state law,” Kozinski wrote.
The case was brought by patients’ rights groups and doctors who
said they have been fearful of recommending marijuana, even if it’s in
a patient’s best interest.
U.S. District Judge William Alsup blocked the Justice Department from
revoking doctors’ Drug Enforcement Administration licenses to
dispense medication “merely because the doctor recommends medical
marijuana to a patient based on a sincere medical judgment.” Alsup’s
order also prevented federal agents “from initiating any investigation
solely on that ground.”
The case was an outgrowth of Proposition 215, which California
voters approved in 1996. It allows patients to lawfully use marijuana
with a doctor’s recommendation.
The Clinton administration said doctors who recommended marijuana
would lose their federal licenses to prescribe medicine, could be
excluded from Medicare and Medicaid programs, and could face
criminal charges. The Bush administration continued Clinton’s fight.
The government argued that doctors were aiding and abetting
criminal activity for recommending marijuana because it’s an illegal
drug under federal narcotics laws.
But the appellate court said doctors could be liable only if they
actually assisted patients in acquiring marijuana.
Last year, the U.S. Supreme Court said clubs that sell marijuana to
the sick with a doctor’s recommendation are breaking federal drug
Federal officials have raided many marijuana clubs in California, and
one case challenging such raids is pending before the 9th Circuit.
That case, brought by an Oakland pot club, argues that the states
have the right to experiment with their own drug laws and that
Americans have a fundamental right to marijuana as an avenue to be
free of pain.
In another federal case in San Jose, a WAMM is seeking to have its
marijuana returned after federal agents seized it in September. A
hearing is set for Monday.
The case decided Tuesday is Conant v. Walters, 00-17222.
Staff writer Brian Seals contributed to this report.
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