ANTI-POT ZEALOTS LOSE ONE

So Long To A Misguided Gag Rule On The Medicinal Use Of Marijuana

WASHINGTON -- It was a small step for the U.S. Supreme Court, but one giant
leap toward a sane drug policy.

I'm talking about the high court's refusal Tuesday to hear the Bush
administration's appeal of a lower court ruling allowing doctors to
recommend the medicinal use of marijuana to their patients.

Had the Supreme Court decided to hear the case, it would have had a golden
opportunity to rip the innards out of laws passed by various states to
legalize or decriminalize the medicinal use of marijuana.

But it didn't. Instead, this conservative Supreme Court wisely decided to
reject the Bush administration's appeal of a ruling that came from what is
reputedly the most liberal appeals court, the San Francisco-based 9th U.S.
Circuit Court of Appeals.

In the case of Conant vs. Walters, Dr. Marcus Conant, a San Francisco AIDS
specialist, challenged the federal policy. He and other doctors argued
quite reasonably that they should be as free to discuss the pros and cons
of marijuana as they are to talk about red wine reducing the risk of heart
disease--or about "vitamin C, acupuncture or chicken soup."

The 9th Circuit agreed. Although doctors still can be punished if they
actually help patients obtain the drug, at least they are now free to
discuss the subject.

So far, eight states have laws legalizing marijuana for patients with
physician recommendations: Alaska, California, Colorado, Hawaii, Maine,
Nevada, Oregon and Washington. Thirty-five states have passed legislation
that reduces penalties for medicinal use of marijuana or otherwise
recognizes medicinal value.

But marijuana remains illegal under federal law.

The U.S. Supreme Court, in its wisdom, declined to be persuaded by
Solicitor General Theodore Olson's argument that this was a law-enforcement
issue, not a free-speech issue. "The provision of medical advice--whether
it be that the patient take aspirin or vitamin C, lose or gain weight,
exercise or rest, smoke or refrain from smoking marijuana--is not pure
speech," he said in court papers. "It is the conduct of the practice of
medicine. As such, it is subject to reasonable regulation."

If so, the high court does not appear to have found a compelling reason for
"reasonable regulation" to include banning doctors from freely discussing
marijuana among other options to which a patient might turn to ease the
pain of an illness.

It is risky to read too much into any decision by the Supreme Court.
Sometimes, for example, the justices will take a pass on an appeal but
decide to hear a similar case later that is brought on different grounds.

But given the long standing record of Chief Justice William Rehnquist and
some others on this court of strong leanings in favor of states rights, it
is not hard to understand why the justices decided to err on the side of
free speech, privacy and public health in leaving the highly personal
matter of doctor-patient consultations to the states. Good for them.

Now they should take the next step: Get the federal government off the
backs of state medicinal marijuana laws. In Washington, House bills to
leave the medicinal marijuana issue to the states have pulled together
sponsors as diverse as liberal Barney Frank (D-Mass.) and libertarian Dana
Rohrabacher (R-Calif.).

Unfortunately, the legislation languishes. Polls tend to show a large
majority of Americans support allowing marijuana for medicinal use,
although not necessarily for recreational use. But progress is held up by a
vocal minority of anti-pot zealots who would rather treat marijuana as a
matter of crime and punishment, instead of public health.