A BANNER DAY FOR PROP. 215

Oct. 30, 2002 Orange County Register

Two days before Halloween, the U.S. Court of Appeals for the Ninth Circuit
issued a landmark ruling halting the federal government's attempts to scare
California physicians and their seriously ill patients from uttering boo
about medical marijuana. On Tuesday, a three-judge panel unanimously ruled,
in Conant v. Walters, that physicians have a federal constitutional right,
under the First Amendment, to recommend medical marijuana to their
patients, and that patients likewise have the constitutional right to
receive such recommendations. In so ruling, the court repudiated efforts by
federal drug czar John Walters, Attorney General John Ashcroft and Drug
Enforcement Administration chief Asa Hutchison to censor physician speech
with respect to marijuana - an attempt to undermine the will of California
voters who passed Proposition 215 in 1996.

The Conant decision is important for several reasons.

First, it upholds the right (and underscores the duty) of physicians to
impart their medical advice to patients, even when that advice is
politically unpopular in Washington, D.C.

Second, it vindicates the interests of seriously ill patients in learning
the honest opinions of their medical providers as to what therapies,
mainstream or otherwise, might help them.

Third, the Conant decision reaffirms a century's worth of legal precedent
that the practice of medicine is regulated by the states, not the federal
government. The Justice Department and White House had asked the court to
give federal government officials the power to monitor, approve - and veto
- - communications between doctors and their patients. The Ninth Circuit
rejected this argument, instead recognizing that doctors and patients
together are best-suited to make treatment decisions, and that state, not
federal, officials, are best-situated to monitor those decisions.

Fourth, the Conant decision is a resounding victory for states' rights. In
1996, California voters enacted Prop. 215 to ensure that seriously ill
persons did not have to do battle with police, prosecutors and judges in
order to use marijuana in their fight for their life and their health. In
declaring the federal government's scare tactics unconstitutional, the
Ninth Circuit gave a green light to California, Alaska, Colorado, Maine,
Nevada, Oregon, Washington and Hawaii - and the several other states
seriously considering legalizing marijuana for medical purposes - to
continue their courageous and compassionate stand on the issue. The federal
government would like state officials to believe that because federal law
continues to prohibit marijuana for all purposes, states are not free under
their own laws to permit physicians to recommend, caregivers to cultivate,
and patients to possess and use medical marijuana. The Conant decision
shows this claim to be false.

Fifth, the federal appeals court goes out of its way to observe that
medical marijuana is not some "foolish or faddish" California notion.
Marijuana is a respected, recognized medical treatment that has relieved
debilitating symptoms such as pain, nausea and wasting. A substantial and
growing body of medical literature demonstrates as much. An increasing
number of medical and health organizations support states' efforts to
legalize marijuana for medical use. Judge Alex Kozinski cited these facts
in the court's decision. In so doing, the court has driven a stake through
the heart of the federal government's disingenuous campaign to declare that
marijuana has no medical usefulness, and the DEA's recent and mean-spirited
efforts to deprive seriously ill patients of their medicine.

The Conant decision is a delicious treat for all who believe in the
sanctity of the physician-patient relationship, the autonomy of the states
to legislate on matters of health, and the efficacy of medical marijuana.
It's time, however, for the federal government to stop its nasty tricks and
let Californians get on with their business without further interference
from the DEA.

Daniel N. Abrahamson is Director of Legal Affairs for the Drug Policy
Alliance. He serves as one of the counsels-of-record for the physician and
patient plaintiffs in the Conant case.