Doctors can dispense advice on marijuana, 9th Circuit says

By The Associated Press

10.30.02

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SAN FRANCISCO — For the first time ever, a federal appeals court has ruled that the government cannot revoke the prescription drug licenses of doctors who recommend marijuana to sick patients.

The three-judge panel of the 9th U.S. Circuit Court of Appeals also ruled unanimously yesterday that the Justice Department cannot investigate doctors for merely recommending marijuana to patients, upholding a 2-year-old court order that prohibited such federal action.

The 9th Circuit said that such investigation 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.

Federal prosecutors argued that doctors who recommend marijuana use were 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.

The Justice Department had no immediate comment.

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 attacked doctors as a means to paralyze California's medical marijuana laws.

The case was brought by patients' rights groups and doctors who said they had been fearful of recommending marijuana, even if it was 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.

Following California, Alaska, Arizona, Hawaii, Maine, Nevada, Oregon and Washington adopted laws allowing the sick to use marijuana with a doctor's recommendation.

The Clinton administration had 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 is an illegal drug under federal narcotics laws.

But the 9th Circuit said doctors could be liable only if they actually assisted patients in acquiring marijuana. Merely recommending the drug "does not translate into aiding and abetting, or conspiracy," Schroeder wrote.

Last year, the U.S. Supreme Court said clubs that sell marijuana to the sick with a doctor's recommendation are breaking federal drug laws.

Pot clubs continue to operate and dole out marijuana to those with a doctor recommendation, including several in San Francisco, as local authorities look the other way. Many cities and counties issue identification cards for sick patients with a doctor's note recommending marijuana.

Federal officials have raided many marijuana clubs in California, and a case brought by an Oakland pot club challenging such raids is pending before the 9th Circuit. That case 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.

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Federal judge: California doctors can recommend marijuana
ACLU's lawsuit contends that federal government's position on revoking prescription licenses violates doctors' free-speech rights.  09.08.00