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US: 9th Circuit Moves to Protect Docs Who Recommend Medical Marijuana
David Kravets Associated Press
Tuesday 29 Oct 2002 16:14 PST SAN FRANCISCO (AP) -- 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 speek 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. Justice Department spokeswoman Susan Dryden said the decision was "currently under review" and declined to say whether the government would appeal to the U.S. Supreme Court or ask the 9th Circuit to reconsider. Graham Boyd, an American Civil Liberties Union attorney, said the ruling preserves state medical marijuana laws by preventing the federal government from silencing doctors. "If a doctor can't recommend it, then no patient can use it," he said. "This was the federal government's first line strategy, to shut down doctor recommendations." 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 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 other seven states also allow the sick to 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. Merely recommending the drug "does not translate into aiding and abetting, or conspiracy," Schroeder wrote. Neil Flynn, a plaintiff in the case and a University of California at Davis doctor specializing in AIDS treatment, said he has recommended marijuana for about three dozen of his 1,500 patients. He said he feared government retribution for discussing what he said were the beneficial aspects of marijuana to reduce pain, nausea and to stimulate eating. "I now feel comfortable in discussing it with my patients and recording it in my chart," Flynn said. 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 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 Santa Cruz medical pot club is seeking to have its marijuana returned after federal agents seized it. The case decided Tuesday is Conant v. Walters, 00-17222.
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