EFFORT TO MUZZLE PRO-POT DOCTORS ARGUED IN COURT

SAN FRANCISCO -- The Bush administration got a mostly cool reception when
it went before a federal appeals court Monday to extend its victory over
state medical marijuana laws by cracking down on doctors who recommend pot.

"Why in this world does an administration that's committed to federalism
want to go to this length to put doctors in jail for doing things that are
perfectly legal under state law?" asked Judge Alex Kozinski of Pasadena,
one of the three members of the 9th U.S. Circuit Court of Appeals assigned
to rule on the government's appeal.

A conservative with a passion for the First Amendment, Kozinski dominated
the hourlong hearing, recalling Supreme Court precedents helpful to the
doctors' point of view, sending his appreciation to four "very brave"
patients who signed onto a supporting brief, suggesting to a lawyer who was
having trouble fielding a practical question: "Why don't you look at the
NORML (National Organization for the Reform of Marijuana Laws) Web site?"

Since passage of Proposition 215, the 1996 California medical marijuana
initiative, the government -- first under President Clinton and now under
President Bush -- has sought to prosecute doctors who recommend marijuana
to their patients, drop them from the federal Medicare and Medicaid
programs or revoke their licenses to prescribe drugs.

A patient's right to use marijuana under the initiative is triggered by a
doctor's recommendation. The federal government contends the
recommendation, therefore, amounts to aiding and abetting illegal conduct
- -- the acquisition of a drug that's banned for all purposes under the
federal Controlled Substances Act.

Judges so far have rejected the argument, agreeing with the American Civil
Liberties Union and a large group of medical and health organizations that
contend the threatened sanctions interfere with legal speech, not illegal
activity, in violation of the First Amendment.

Injunctions issued by federal trial judges in San Francisco have blocked
any crackdown.

Last May, however, the U.S. Supreme Court ruled in favor of the government
in a separate case against medical marijuana patients and dispensaries
under Proposition 215. The appeal of the injunction in the doctors' case
was waiting in the wings.

When the 9th Circuit took it up Monday, Judge Betty Fletcher of Seattle
joined Kozinski in probing soft spots in the administration's position.

Her focus: the government's apparent difficulty in defining the types of
statements that would get a doctor in trouble.

Fletcher posed a series of questions about a hypothetical conversation
between a doctor and a cancer patient who's unable to eat because of the
side effects of chemotherapy.

Mark Stern, the government's lawyer, said the doctor could tell the patient
that marijuana was the right treatment but would have to add that it's
illegal and that the advice shouldn't be taken as a recommendation to use
the drug but that the doctor could try to get the patient into a federally
approved program.

Kozinski compared that answer to the fine print on the back of a credit
card statement.

Only the third member of the 9th Circuit panel, Chief Judge Mary Schroeder
of Phoenix, asked questions that seemed sympathetic to the government.

She asked the ACLU's lawyer, Graham Boyd, whether a doctor had a right to
issue "scrip that could be turned into marijuana" -- a written statement
that could be taken to a marijuana distribution center to obtain the drug,
interfering with the federal government's interest in controlling it.

She also suggested sending the case back to the federal trial court for
further examination in light of the Supreme Court's 2001 Proposition 215
ruling.

"Why should we fool with it at all?" she asked.

There is no deadline for the 9th Circuit's decision.