MEDICAL MARIJUANA AND FREE SPEECH

The Clinton administration's three-year battle to prevent the use of
marijuana as medicine as allowed under California law got a well-deserved
rebuke this month. A federal judge wisely ruled that the administration
could not punish doctors who recommend the benefits of marijuana to their
patients. Such a policy, wrote Judge William Alsup, raises "severe First
Amendment doubts."

Proposition 215, approved by voters in California in 1996, made it legal
for seriously ill patients to obtain and use marijuana when that therapy
was recommended by a doctor. Seven other states have since enacted similar
measures. Marijuana possession remains illegal under federal drug laws. But
the federal government seldom prosecutes medical marijuana users because
the quantities are small and juries tend to sympathize with seriously ill
individuals. Instead the administration has tried to circumvent the
California law by threatening doctors who recommend marijuana with the loss
of their federal licenses to prescribe drugs.

A class action was brought by California doctors and AIDS and cancer
patients who want to use marijuana to curb nausea and weight loss. The suit
charged the federal government with interfering with patient-doctor
communications and violating free speech rights. Judge Alsup ruled that the
federal government could not revoke drug licenses merely because a doctor
makes a legitimate medical judgment, even if the doctor's recommendation
could then be used by a patient to obtain marijuana under Proposition 215
in violation of federal law.

As the judge sensibly noted, a doctor may well make a recommendation for
marijuana without leading anyone to commit a federal crime. A patient armed
with that recommendation might lobby for a change in federal drug laws, or
enroll in a federally approved experimental marijuana therapy program, or
even travel to a country where medical marijuana use is legal. Besides, it
is the patient and not the doctor who procures the drug.

Last year a report by the Institute of Medicine, a branch of the National
Academy of Sciences, found that ingredients in marijuana can be effective
for treating some symptoms associated with AIDS. It recommended development
of better delivery systems, such as inhalers or patches. In the interim, it
said that people who do not respond to other therapies should be allowed to
smoke marijuana in controlled situations. The Clinton administration should
stop threatening doctors and make marijuana available to sick individuals
who need relief.