JUDGE POINTEDLY QUESTIONS BUSH POLICY ON MEDICAL POT

Why Is Federal Government Into This, He Asks

A federal appeals court was openly skeptical yesterday about the federal
government's attempt to punish California doctors who recommend marijuana
to their patients.

"Why is the federal government getting into this?" asked Judge Alex
Kozinski, historically the most conservative of the three judges on the
U.S. Court of Appeals panel. "Why on earth does an administration that's
committed to the concept of federalism . . . want to go to this length to
put doctors in jail for doing something that's perfectly legal under state
law?"

The Bush administration is trying to revive sanctions proposed in 1996
under President Bill Clinton after California voters approved Proposition
215, which legalized marijuana for patients whose doctors recommended the
drug for medical purposes. Noting that marijuana remains illegal under
federal law, Clinton's chief drug warrior said doctors who recommended it
faced loss of their federal licenses to prescribe controlled substances --
vital to many medical practices -- and could face criminal prosecution.

The federal proposal was quickly blocked by a court order and permanently
barred in September 2000 by U.S. District Judge William Alsup of San Francisco,

who said punishing doctors for giving medical advice violates freedom of
speech. Yesterday, a Justice Department lawyer asked the court to overrule
Alsup.

Attorney Mark Stern said the government should be allowed to investigate a
doctor whose advice "will make it easier to obtain marijuana" -- just as it
would investigate a doctor who recommended heroin.

Stern said the government "is not interested in suppressing the content of
doctor-patient dialogue" and would allow physicians to discuss the risks
and benefits of marijuana as long as they didn't recommend it. But his
attempt to define the difference failed to satisfy either Kozinski or
liberal Judge Betty Fletcher, who said it sounded too vague.

Kozinski said a doctor's recommendation that a patient use marijuana would
have no effect on the enforcement of federal law.

The ruling, not expected for several months, would also affect medical
marijuana laws in Alaska, Arizona, Hawaii, Nevada, Oregon and Washington,
also governed by the San Francisco appeals court. Colorado and Maine, which
have similar laws, are in other judicial circuits.

The San Francisco court rebuffed the federal campaign against Propostion
215 in an earlier case, ruling in 2000 that an Oakland cooperative would
not risk federal prosecution if it distributed marijuana to seriously ill
patients who had a medical need for the drug and no legal alternative. But
the Supreme Court disagreed last year and said the federal drug law did not
contain a "medical necessity" exemption.

At yesterday's hearing, Chief Judge Mary Schroeder suggested returning the
physicians' case to Alsup for reconsideration in light of the Supreme Court
ruling, which came after Alsup's injunction. But American Civil Liberties
Union lawyer Graham Boyd said Alsup had specified in his decision that it
would be unaffected by the then-pending Supreme Court case.

"When a doctor makes a medical diagnosis, it's protected by freedom of
speech. . . . We need to get honest, uncensored advice from our
physicians," said Boyd, who represents a group of AIDS and cancer
physicians and patients.

In a separate case yesterday, the same panel heard a challenge by hemp
manufacturers and distributors to the Bush administration's attempt to ban
hemp-containing food products, a growing staple of natural food stores.

The Drug Enforcement Administration announced rules last October, without
advance public notice, that would put a wide variety of food products
containing hemp into the same prohibited category as heroin and marijuana
because hemp seeds and oil contain minute amounts of THC, the active
ingredient in marijuana. The rules were blocked by the appeals court last
month while it considered the case.

The suit challenges only the issuance of the rules without public notice
and comment, and could be overtaken by events. The DEA has issued the same
rules on a parallel track, received public comments, and could announce a
final version within months -- an action likely to prompt another court
challenge.