JUDGES RULE DOCTORS CAN LEGALLY RECOMMEND MARIJUANA

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.

Legal experts described the 3-0 ruling by the 9th U.S. Circuit Court of
Appeals as a landmark for the free speech rights of doctors.

If the decision withstands appeal, it also would serve as a significant
step in efforts to legalize the use of marijuana in medical treatment.

Tuesday's ruling upheld a 1999 decision by U.S. District Judge William
Alsup in San Francisco. That ruling barred U.S. Justice Department
officials from punishing doctors who advised patients, including many with
AIDS and cancer, that marijuana might be medically beneficial.

The ruling was hailed by the American Civil Liberties Union, public health
groups and the California Medical Association, which filed a
friend-of-the-court brief in support of the physicians who filed the suit.

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

U.S. Justice Department spokesman Susan Dryden said the decision was under
review.

Tuesday's ruling evolved out of the passage of Proposition 215, the 1996
California initiative that permits patients to lawfully use marijuana if
they have a doctor's recommendation.

The Clinton administration immediately took action to suppress the
California law by threatening to take away doctors' licenses to dispense
drugs or even jail physicians who recommended marijuana.

The Bush administration has taken the same position.

Justice Department lawyers maintain marijuana serves no valid medical
purpose and that if the California ballot measure is allowed to remain in
effect, it would subvert the government's continuing war against drugs.

Tuesday's ruling affects California and six other states with medical
marijuana laws -- Alaska, Arizona, Hawaii, Nevada, Oregon and Washington --
that are within the 9th Circuit's jurisdiction.

Oregon voters approved a ballot measure legalizing medical marijuana in 1998.

Two other states, Colorado and Maine, also have statutes permitting the use
of marijuana for medical purposes.

Tuesday's decision comes three months after the California Supreme Court
ruled unanimously that state residents who use or grow marijuana for
personal medical use are protected from prosecution in state court as long
as they have a doctor's approval.

In its ruling, the 9th Circuit rejected Justice Department arguments that
the California law is undermining the federal war on drugs.

"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 Schroeder, the
circuit's chief judge.

The government's policy strikes "at core First Amendment interests of
doctors and patients," Schroeder added.

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, referring to crimes government attorneys
contended doctors commit when making such a recommendation.

Schroeder was joined by Judge Betty Fletcher, who like her was appointed by
President Carter, and by Judge Alex Kozinski, who was appointed by
President Reagan.

In 1997, plaintiffs including the Bay Area Physicians for Human Rights
filed a federal suit challenging the Clinton administration's policy. A
federal 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 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 First
Amendment right of a physician to speak candidly to his or her patient and
answer questions patients may have," Conant said.

Under California law, possession of small quantities of marijuana is a
misdemeanor with a maximum $100 fine.

Graham Boyd, an American Civil Liberties Union attorney who argued for the
plaintiffs, said the ruling was critical to the preservation of the
California law.

For the federal government, having the power to suppress doctors speech on
medical marijuana was "the silver bullet," Boyd said.

"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," Boyd said.