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Medical Pot Use Given a Boost

Appeals panel says U.S. can't investigate doctors or void their licenses for suggesting the drug to patients. California, six other states are affected.

October 30, 2002|Henry Weinstein | Times Staff Writer

The federal government may not revoke a doctor's license to dispense medication, or investigate a physician, for recommending marijuana to sick patients, a federal appeals court in San Francisco ruled Tuesday.

The 3-0 decision by the U.S. 9th Circuit Court of Appeals is the latest in a series of rulings bolstering efforts in California to normalize the use of marijuana for medical treatment.

Three months ago, the California Supreme Court ruled unanimously that state residents who have a doctor's approval to use marijuana for a medical purpose are protected from prosecution in state court for using or growing limited quantities of it.

The number of Californians using marijuana for medication is unknown. A few cities and counties, however, have established official registries of medical marijuana users, and in those jurisdictions alone, 30,000 patients have signed up, said Steph Scheer, a spokesman for Americans for Safe Access, an Oakland-based group that supports the use of medical marijuana.

Tuesday's ruling affects medical marijuana laws in California and six other states -- Alaska, Arizona, Hawaii, Nevada, Oregon and Washington -- that are within the 9th Circuit's jurisdiction. Two other states outside the circuit's jurisdiction, Colorado and Maine, also have laws permitting marijuana use for medical purposes.

The ruling upheld a 1999 decision by U.S. District Judge William D. Alsup in San Francisco that barred federal prosecutors from taking action against doctors who tell patients, including many with AIDS and cancer, that marijuana might be medically beneficial.

The appellate ruling was described by an American Civil Liberties Union lawyer as a landmark for the free speech rights of doctors. It was also hailed by public health groups -- as well as the California Medical Assn., which filed a friend-of-the-court brief in support of the physicians who brought the suit.

For the federal government, having the power to deter doctors from recommending marijuana to patients was "the silver bullet," said Graham Boyd, an ACLU attorney who argued for the plaintiffs. "A patient is only allowed to possess, use or grow marijuana if a doctor first recommends it. If the government can silence physicians who would recommend medical marijuana, then there is no more legal medical marijuana."

Peter Warren, spokesman for the state medical association, said: "This is a great day for California doctors and California patients. It ends a gag rule where the federal government tried to chill the sacred private communications between a physician and his or her patients."

Valerie Corral, one of the plaintiffs in the case who uses marijuana to alleviate symptoms of epilepsy, said the ruling "legitimizes marijuana by bringing it into a medical perspective."

Justice Department spokesman Susan Dryden would only say the decision was under review. It could be appealed to a larger panel of 9th Circuit judges or to the U.S. Supreme Court.

The ruling evolved from passage of Proposition 215, the 1996 California initiative that permits patients to lawfully use marijuana if they have a doctor's recommendation. Under California law, possession of small quantities of marijuana for nonmedical purposes is a misdemeanor with a maximum $100 fine.

The Clinton administration immediately acted to suppress California's medicinal pot law, threatening to punish doctors who recommended marijuana -- by taking away their licenses to dispense drugs or potentially even jailing the physicians. The Bush administration has taken the same position.

Justice Department lawyers say pot serves no valid medical purpose and that if the California ballot measure were allowed to remain in effect, it would subvert the government's ongoing war against drugs.

In its ruling, the 9th Circuit rejected that argument. "The government has not provided any empirical evidence to demonstrate that [the lower court injunction] interferes with or threatens to interfere with any legitimate law enforcement activities," wrote Mary M. Schroeder, the circuit's chief judge.

The government's policy strikes "at core 1st Amendment interests of doctors and patients," added Schroeder, appointed by President Carter. "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."

Schroeder drew a clear distinction between a doctor legally recommending the use of marijuana and the illegal activity of procuring marijuana for a patient. Simply recommending marijuana "does not translate into aiding and abetting, or conspiracy," Schroeder wrote. Government attorneys had contended that doctors were committing such crimes when recommending marijuana to patients. Judges Betty B. Fletcher, also a Carter appointee, and Alex Kozinski, a Reagan appointee, joined in the ruling.

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