JUDGE DIAGNOSES A DRUG QUANDARY

Judge Questions Ban On Docs' Pot Discussion

A vexatious battle in America's war on drugs emerged on a new front
Thursday -- U.S. District Judge William Alsup's courtroom.

The target is not Colombian drug barons or Capp Street junkies, but a
platoon of women and men armed with tongue depressors and stethoscopes.

The prize is the right of doctors to counsel their patients that marijuana
will ease the pain and suffering of some diseases. The American Civil
Liberties Union is arguing the government should be barred from taking
action against those doctors.

But government attorneys in Conant v. McCaffrey, 97-0139, said that
physicians who recommend marijuana as a medical treatment should have their
licenses to prescribe drugs yanked.

"Number one, it exposes patients to drugs ... which have been unavailable
medically under federal law, and number two, it exacerbates the drug
trafficking problem," said Department of Justice attorney Joseph Lobue.

Judge Alsup, who came into court Thursday armed to the teeth with
hypotheticals, was skeptical.

"A recommendation is nothing more than information. It isn't a drug," Alsup
said.

He said a patient, on the advice of a doctor, could fly to Switzerland to
obtain government-approved marijuana or enroll in one of the few medical
marijuana scientific studies being conducted here -- neither of which would
violate laws prohibiting buying or selling controlled substances.

"The problem with your position is that it assumes that the patient is
going to act illegally as soon as he leaves the office," Alsup told the DOJ
lawyer.

The judge was also fully aware that the Ninth Circuit U.S. Court of Appeals
had recently overturned the decision of his courthouse neighbor, U.S.
District Judge Charles Breyer, in an unrelated case. Breyer was ordered to
consider the medical necessity of marijuana as a viable defense.

Alsup said that ruling raised significant questions, asking how a medical
necessity defense could ever be staged without a doctor testifying in court
that marijuana is a viable treatment.

"If the doctor came in to testify, you'd be waiting out there with an
indictment to nail him because he recommended marijuana?" Alsup asked Lobue.

Lobue said no, insisting the government would only prosecute doctors who
"aided and abetted" in the drug's distribution.

But the government does want the right to revoke doctors' licenses to
prescribe drugs. Medically, marijuana is most commonly used as a treatment
for AIDS-related symptoms and glaucoma or to ease the effects of chemotherapy.

The ACLU argued the case on First Amendment grounds. It is asking Judge
Alsup to extend and clarify a preliminary injunction against the punishment
or prosecution of doctors entered by former Northern District Judge Fern Smith.

"She didn't describe in any way what doctors are able to do," ACLU attorney
Graham Boyd said. "Doctors remain utterly confused about what it is they
can or cannot say."

The confusion, he said, is leading to a chill on doctors' communications
with their patients. Boyd is seeking a clearer ruling granting doctors wide
immunity in such cases.

But Alsup remarked that a strengthening of Smith's injunction could be
"more draconian," and was worried that the suit seemed aimed at Clinton
administration policy.

"There's something about the posture of this [case] that I can't quite put
my finger on," he said at one point.

Alsup hinted that he was concerned about issuing a ruling that would
unintentionally set a precedent that overstepped the aims of the suit,
perhaps not only insulating doctors from criminal prosecutions but allowing
them to recommend other drugs classified as having no medicinal value.

"Any Schedule I drug, they could recommend it?" the judge asked.

"It's speech," Boyd replied.

"What I hear you saying is, the doctor could not be punished for
recommending crank," Alsup said.

Boyd responded by saying crank -- or methamphetamine -- was outside
doctors' standard of care, while marijuana has been increasingly accepted
as a medical alternative.