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Court: Don't Tread on Doctors Who Recommend Medical Marijuana
Pubdate: Tue, 29 Oct 2002
Source: Associated Press (Wire)
Copyright: 2002 Associated Press
Author: David Kravets, Associated Press Writer
COURT: DON'T TREAD ON DOCTORS WHO RECOMMEND MEDICAL MARIJUANA
The Justice Department may not revoke doctors' licenses to dispense medication or investigate doctors for recommending marijuana to sick patients, a federal appeals court ruled Tuesday.
The decision by the 9th U.S. Circuit Court of Appeals upholds a 2-year-old court order prohibiting such federal action and is one of several cases resulting from medical marijuana laws on the books in eight states.
Federal prosecutors argued that such tactics are necessary because doctors are interfering with the drug war and circumventing the government's judgment that marijuana has no medical benefits.
The San Francisco-based court disagreed.
"The government policy does ... strike at core First Amendment interests of doctors and patients," Chief Judge Mary Schroeder wrote in the 3-0 opinion. "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."
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 ruling does, in fact, preserve state medical marijuana laws by preventing the federal government from silencing doctors, said Graham Boyd, an American Civil Liberties Union attorney.
"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."
The case was brought by patients' rights groups and doctors including Neil Flynn of the University of California, Davis, who said marijuana may be beneficial for some patients but doctors have been fearful of recommending it, even if it's in a patient's best interest.
U.S. District Judge William Alsup responded by prohibiting the Justice Department from revoking 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 the measure's passage, 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.
Other states with medical marijuana laws include Alaska, Arizona, Hawaii, Maine, Nevada, Oregon and Washington.
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, including several in San Francisco, as local authorities look the other way. But federal officials have raided many clubs in California, the state where they are more prevalent.
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.
The case decided Tuesday is Conant v. Walters, 00-17222.
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