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.

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.

In a lengthy concurring opinion, Kozinski said doctors who spoke candidly
to patients about the potential benefits of medical marijuana "may destroy
their careers and lose their livelihoods" if the government policy is
implemented.

Kozinski cited declarations doctors lodged when the suit challenging the
government policy was filed in 1997. The doctors described how the policy
had chilled their normal consultations with patients.

"As a result of the government's public threats, I do not feel comfortable
even discussing the subject of medical marijuana with my patients," Dr.
Milton N. Estes of San Francisco said in his declaration. "I feel
vulnerable to federal sanctions that could strip me of my license to
prescribe the treatments my patients depend upon, or even land me behind bars."

In 1997, plaintiffs including the Bay Area Physicians for Human Rights
filed a federal suit challenging the Clinton administration's policy. A
U.S. district judge issued a preliminary injunction barring action against
doctors, and Judge Alsup issued a permanent injunction in 1999.

Before the preliminary injunction was issued, federal Drug Enforcement
Administration agents interrogated one doctor in Northern California and
took records from his office after they learned that he had talked to a
patient about using marijuana for medical purposes. The doctor said in a
court declaration that he was scared, but no action was taken against him.

On Tuesday, one of the plaintiffs, Dr. Marcus Conant of San Francisco, who
has been treating AIDS patients since 1981, said he was delighted with the
ruling. "This has never been about legalizing marijuana. It is about the
1st Amendment right of a physician to speak candidly to his or her patient
and answer questions patients may have," Conant said.

In his opinion, Kozinski cited 1999 data from the White House Office of
National Drug Control, which said there was scientific evidence indicating
the potential therapeutic value of marijuana-based drugs for pain relief,
control of nausea and vomiting and appetite stimulation. However, he
cautioned that "the evidence supporting the medical use of marijuana does
not prove that it is, in fact, beneficial. There is also much evidence to
the contrary, and the federal defendants may well be right that marijuana
provides no additional benefit over approved prescription drugs, while
carrying a wide variety of serious risks."

But Kozinski stressed that there is a genuine difference of expert opinion
on the issue, as well as significant scientific and anecdotal evidence
supporting both viewpoints.

"For the great majority of us who do not suffer from debilitating pain, or
who have not watched a loved one waste away as a result of AIDS-induced
anorexia ... it doesn't much matter who has the better of this debate. But
for patients suffering from [multiple sclerosis], cancer, AIDS or one of
the afflictions listed in the [National Academy of Sciences study on
marijuana and medicine], and their loved ones, obtaining candid and
reliable information about a possible avenue of relief is of vital
importance," Kozinski wrote.

"In this case," he emphasized, "it is perfectly clear that the harm to
patients from being denied the right to receive candid medical advice is
far greater than the harm to doctors from being unable to deliver such advice."

One such patient, the judge said, is plaintiff Keith Vines, an assistant
district attorney in San Francisco, whose bout with AIDS had caused him to
lose more than 40 pounds. The decorated Air Force officer was "only able to
recover by using cannabis to stimulate his appetite."

Kozinski said that if the federal policy were enforced, the likely
consequence is that "many patients desperate for relief from debilitating
pain or nausea would self-medicate, and wind up administering the wrong
dose or frequency, or use the drug where a physician would advise against it."

If the government policy went into effect, it also would have the negative
impact of deliberately undermining California's effort to define the line
between legal and illegal marijuana use, Kozinski said. Normally state law
bows to federal law, but this situation falls within a long-established
exception, the judge said.

Another case, stemming from related federal efforts to curb medical
marijuana use, is pending before the 9th Circuit. In that case, the Oakland
Cannabis Buyers Club contends that states are entitled to experiment with
their own drug laws and that U.S. citizens are entitled to use marijuana to
alleviate pain.