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U.S. court backs use of medical marijuana

Pubdate: Wednesday, October 30, 2002
Source: San Francisco Chronicle
Copyright: 2002 San Francisco Chronicle
Author: Bob Egelko, Chronicle Staff Writer

U.S. court backs use of medical marijuana
Ruling says doctors can recommend pot

A federal appeals court said Tuesday the federal government cannot punish California doctors who recommend marijuana to their patients.

The ruling by the three-judge panel of the Ninth U.S. Circuit Court of Appeals in San Francisco was a rare legal victory for medical marijuana advocates and was hailed as a significant step toward preserving California's landmark medical marijuana law, which has been continually challenged by the U. S. Justice Department since its adoption in 1996.

Seeking sanctions against doctors who advise the use of marijuana, a federal policy pursued by both the Clinton and Bush administrations, violates the freedom of speech of both doctors and patients, the judges said.

"An integral component of the practice of medicine is the communication between a doctor and a patient," said Chief Judge Mary Schroeder. "Physicians must be able to speak frankly and openly to patients."

Tuesday's 3-0 ruling upheld lower-court injunctions that have been in effect since shortly after California voters passed Proposition 215, the state's medical marijuana law in 1996.

"If you eliminate the doctors' recommendations, you've eliminated Proposition 215," said Graham Boyd, an American Civil Liberties Union lawyer for doctors and patients who challenged the federal policy. "If federal policy here stood, that would be the end of the ability of people to legally use medical marijuana."

The Justice Department, which said it was reviewing the decision, could appeal to the U.S. Supreme Court.

Tuesday's ruling stems from a conflict between Proposition 215 and federal law. The Justice Department insists that marijuana has no medicinal value and that California's law, if allowed to remain intact, would sabotage the government's effort to fight illicit drugs.


Just two months after Proposition 215 passed, drug officials in the Clinton administration threatened stiff penalties for physicians who told patients with cancer, AIDS or other diseases that marijuana might help them.

They threatened to revoke the doctors' licenses to prescribe federally regulated narcotics -- vital to many medical practices -- and disqualify them from the Medicare program.

The Clinton administration dropped the issue after a federal judge issued a preliminary injunction protecting doctors who recommended marijuana as long as they didn't help patients obtain it.

But after U.S. District Judge William Alsup, newly assigned to the case, issued a permanent injunction in 2000, the Bush administration took it to the appeals court.

The ruling affects seven states with medical marijuana laws: California, Alaska, Arizona, Hawaii, Nevada, Oregon and Washington.

One member of the appellate panel said Tuesday the federal government's targeting of California doctors trampled on the state's authority to make its own laws.

By cutting off medical recommendations that could legalize patients' conduct under Proposition 215, "the federal government is forcing the state to keep medical marijuana illegal," said Judge Alex Kozinski. He said the federal government can enforce its own anti-drug laws but can't make a state change its laws. Kozinski's opinion, which was not joined by the other two panel members, ventured into another area where no federal appellate judge had gone before: the debate on the medical usefulness of marijuana.

Though the evidence isn't conclusive, Kozinski said, the histories of patients in federally approved experiments, backed by numerous studies, "provide compelling support for the view that medical marijuana can make the difference between a relatively normal life and a life marred by suffering."


Writing for the entire panel, Schroeder said the government can prosecute doctors for actively helping patients acquire illegal drugs, but not for giving good-faith medical advice that might enable a patient to obtain marijuana independently.

"The government's policy . . . leaves doctors and patients no security for free discussion," she said.

She also said the ruling "is consistent with principles of federalism that have left states as the primary regulators of professional conduct" -- in other words, that states, not the federal government, regulate the practice of medicine.

A doctor and two patients who took part in the suit were relieved by the appellate court's ruling.

The government's threats were "extremely intimidating," said Dr. Milton Estes, director of the Tom Steel Clinic for HIV patients in Mill Valley and chief of AIDS care in San Francisco jails. "You can't really practice medicine" without the federal licenses.

After federal courts intervened, Estes said, doctors were again able to "walk the tightrope, not being part of furnishing marijuana, but . . . talking about the risks and benefits."

"There were many doctors who, for fear of losing their livelihood, stopped having discussions about marijuana," said another plaintiff, Keith Vines, a San Francisco deputy district attorney who lost 50 pounds and nearly died from a wasting syndrome associated with AIDS. He credits medical marijuana with restoring his appetite and saving his life.

Judith Cushner, director of Laurel Hill Nursery School in San Francisco, said medical marijuana allowed her to endure severe nausea from chemotherapy after a 1989 breast cancer diagnosis, and gave her the will to start renewed therapy after a diagnosis of endometrial cancer last December.

When the federal government threatened doctors in late 1996, "I felt frightened . . . the anxiety of thinking you might talk to a doctor who doesn't feel free to be responsive," said Cushner, 57.

"I'm not trying to be overly dramatic, but without (marijuana) there's a good chance I wouldn't have continued treatment (this year) and it likely would have taken my life."

E-mail Bob Egelko at begelko@sfchronicle.com


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