ACLU, U.S. CLASH ON POT RULES

Judge Will Decide Whether Doctors Can Prescribe Medicinal Marijuana

The American Civil Liberties Union asked a federal judge Thursday to issue
a permanent injunction to prevent the government from penalizing doctors
who discuss marijuana with patients.

The federal government, in response, reasserted its resistance to
California's controversial medicinal marijuana law -- approved by voters in
1996 and tied up in court ever since -- by saying doctors who recommend
cannabis to seriously ill patients could lose their licenses to dispense
all medicine.

``There is a national standard here. Doctors cannot use marijuana in their
medical practice -- period,'' Justice Department attorney Joseph W. Lobue
told a judge during arguments at U.S. District Court in San Francisco.

The hearing could signify the last stage of a class-action lawsuit, brought
by the ACLU, that contends the federal government is stifling the free
speech of physicians in an overzealous attempt to stay in line with its
``war on drugs.''

``As part of this war, they don't want doctors talking to patients about
marijuana at all,'' said ACLU attorney Graham Boyd. ``That absolutely
violates the Constitution.''

Boyd conceded he knew of no doctors targeted for criminal prosecution or
hit with other sanctions since the issue in 1997 of a preliminary
injunction preventing physicians from being targeted by the government.

But he said many doctors resist even mentioning pot for fear of losing
their federal right to prescribe medication, and that most are ``completely
and utterly confused'' about the subject.

Judge William Alsup was expected to issue a decision in the next few weeks.

And so the debate over medicinal marijuana continues, four years after
voters overwhelmingly approved Proposition 215.

Also called the Compassionate Use Act, the measure allows patients with
such chronic, debilitating illnesses as AIDS and cancer -- and with a
doctor's recommendation -- to grow and use marijuana for pain relief
without being prosecuted under state law. Similar measures have passed in
Alaska, Arizona, Hawaii, Maine, Nevada, Oregon and Washington state.

The first challenges to Proposition 215 were directed at cannabis clubs for
medicinal marijuana users. Clubs in Oakland, San Francisco and San Jose
were closed by local authorities, uncomfortable with their lack of
regulation, intent on upholding state and federal drug laws.

But the tide seems to be turning for pot clubs in some cities.

Peter Baez, a San Jose club operator charged in 1998 with eight felony
counts, was allowed in May to plead no contest to one misdemeanor and pay a
$100 fine. And last month, a federal judge cleared the way for the Oakland
Cannabis Buyers' Cooperative to distribute marijuana. The Justice
Department has said it will appeal that ruling.

State, federal conflict

At the heart of the battle over Proposition 215 is the conflict between
state law, which allows distribution of medicinal marijuana, and federal
law, which says pot has no legitimate medical purpose.

That conflict was apparent in court Thursday, as Justice Department lawyers
reiterated their argument that recommending marijuana to patients keeps
drug traffickers in business and involves a substance that is not regulated
by the federal Food and Drug Administration.

Lobue likened a doctor recommending that a patient smoke marijuana to a
lawyer recommending that a defendant commit perjury.

Several years ago, White House drug policy chief Barry McCaffrey stoked the
controversy when he said doctors who recommended marijuana would lose their
federal licenses to prescribe controlled substances. He said the doctors
would be excluded from Medicare and Medicaid and could face criminal charges.

But a federal judge, describing the Clinton administration's drug policy as
``fickle'' and ``vague,'' later stayed the action until the state vs.
federal policy issue is resolved.

That hasn't happened yet, but the 10 doctors and five patients for whom the
ACLU filed the class-action lawsuit are hoping to leave their mark on the
debate. They say the federal government feels threatened by popular support
for marijuana and is using doctors as a tool to effectively block the
Compassionate Use Act.

Judge Alsup vigorously questioned both sides about their positions
throughout Thursday's nearly three-hour hearing. At times, he seemed to
suggest the Justice Department was splitting hairs and arguing semantics.

Alsup noted that the appeals court ruled that patients can defend
themselves by saying marijuana is medically necessary.

Judge's question

``If that's true, who's going to declare if it's a medical necessity if
it's not a doctor?'' the judge asked Lobue. ``How do you square that,
holding with your position in this case that a doctor cannot even recommend
marijuana?''

Lobue responded that the doctor would have to testify that cannabis is a
medical necessity, but admitted that could put the doctor at risk for
license revocation.