HIGH COURT LETS STAND RULING OVER MEDICAL POT

Doctors May Discuss Option With Patients

California's medical marijuana law survived its most serious legal threat
Tuesday when the U.S. Supreme Court scuttled a Bush administration plan to
punish doctors who recommend the drug to their patients.

The justices, without comment, denied review of a ruling by a federal
appeals court in San Francisco last October that said doctors and patients
have the right to discuss the subject freely, without fear of severe
federal penalties against the physicians. The government had sought to
revoke the doctors' licenses to prescribe federally regulated narcotics --
vital to many medical practices -- and disqualify them from the Medicare
program.

Tuesday's action didn't remove all the legal clouds surrounding Proposition
215, the initiative passed by California voters in 1996 that allows
patients with cancer, AIDS and other illnesses to use marijuana with their
doctor's approval. The federal government, while not challenging Prop. 215
directly, has won a series of court rulings limiting the scope of the
measure, the model for laws in eight other states.

Federal authorities under Presidents Bill Clinton and Bush have shut down
local dispensaries, raided growers and, during the Bush administration,
prosecuted medical marijuana suppliers. Federal courts have consistently
upheld those efforts, relying on the federal law that bans marijuana and
recognizes no legitimate medical use.

But those federal measures have succeeded only in somewhat restricting the
supply of marijuana. The drug remains widely available to medical patients
under programs backed by local authorities, and the state continues to
support medical marijuana. Under a new law, California will issue cards
that will allow medical marijuana patients to identify themselves to police
as legitimate users.

Punishment of doctors, on the other hand, could have made Prop. 215
unworkable by making doctors unwilling to recommend marijuana, and thus
preventing patients from obtaining it legally.

"It would have silenced most doctors because it (would have) put their
livelihoods at risk," said Ann Brick, an American Civil Liberties Union
lawyer for a group of doctors and patients who challenged the federal policy.

Doctors "are our experts, our coaches," said Keith Vines, a San Francisco
assistant district attorney and AIDS patient who was a plaintiff in the
case. Vines lost 50 pounds and nearly died from a wasting syndrome
associated with AIDS and credits medical marijuana with restoring his
appetite and saving his life.

"If there's a risk that goes along with (using marijuana), I'll accept that
risk, because that enabled me to regain the weight and stay alive," he
said. "It wouldn't have been available if the federal government had its
way, dictating what doctors could say to their patients."

Dr. Milton Estes, medical director of the San Francisco Department of
Public Health's Forensic AIDS Project and also a plaintiff in the case,
said he hadn't seen such a serious federal threat against doctors since the
days of illegal abortion, when some physicians were prosecuted for
performing abortions.

"For a doctor like me who deals with people with a great deal of pain, my
work would be significantly curtailed" if the government had won the case,
Estes said. After Prop. 215 passed and the government threatened doctors,
he said, "I became afraid to bring it up."

After Tuesday, "there no longer needs to be fear in anyone's mind,
including physicians, that they can openly discuss medical marijuana," said
another plaintiff, Judith Cushner, director of Laurel Hill Nursery School
in San Francisco. She is undergoing chemotherapy after suffering a relapse
of breast cancer and says medical marijuana combats nausea from the therapy
and enables her to continue treatment.

The Supreme Court's rebuff of the Bush administration was not a nationwide
ruling, but it left last year's appellate decision intact in the Ninth U.S.
Circuit Court of Appeals, which includes seven states with medical
marijuana laws: California, Arizona, Nevada, Oregon, Washington, Alaska and
Hawaii. Maine and Colorado, which have similar laws, are in other circuits
and are not affected by the ruling.

The federal government argued that a doctor's recommendation under
California law was the equivalent of a prescription for illegal drugs.
Justice Department lawyers said a doctor wouldn't be punished for merely
discussing marijuana with a patient as long as the doctor made it clear
that the drug was illegal under federal law, that federal authorities
considered it dangerous and that the doctor wasn't recommending it.

After the high court's ruling, John Walters, director of the White Office
Office of Drug Control Policy, warned that the cultivation and trafficking
of marijuana remains a federal offense.

"It remains the charge of every responsible public official and medical
professional to continue to protect the health of American citizens and
reduce the harms caused by marijuana and other dependency-producing drugs,"
he said.

The government's arguments failed to persuade federal judges, whose
injunctions protecting doctors were upheld last year by the Ninth U.S.
Circuit Court of Appeals. That court said the government could prosecute
doctors for helping patients acquire illegal drugs, but not for giving
medical advice that might allow a patient to obtain marijuana independently.

"An integral component of the practice of medicine is the communication
between a doctor and a patient," wrote Chief Judge Mary Schroeder in the
3-0 ruling. "The government's policy ... leaves doctors and patients no
security for free discussion."

She also noted that states, not the federal government, have traditionally
regulated the practice of medicine. That is a critical issue in a case
pending before a different panel of the appeals court, involving Attorney
General John Ashcroft's attempt to penalize doctors who prescribe lethal
medication for their patients under Oregon's physician-assisted suicide law.

The Supreme Court case is Walters vs. Conant, 03-40.