The Doctors

Mention "December 30" to any physician in the state of
California and he or she will know precisely what you're thing about.
That was the day when Gen. Barry McCaffrey; flanked by Attorney General
Janet Reno, Secretary of Health and Human Services Donna Shalala and a
D.E.A. official stood before the television cameras to deliver an
unprecedented threat to the doctors of California. According to a
statement issued at the news conference, "a practitioner's action of
recommending or prescribing Schedule I controlled substances" like
marijuana ... "will lead to administrative action by the Drug
Enforcement Administration to revoke the practitioner's registration."
Though doctors are licensed by the states, without a D.E.A. registration
they cannot prescribe medicine cannot, in effect, practice. The new
policy also threatened to criminally prosecute doctors who recommend
medical marijuana, and to exclude them from Medicare and Medicaid.
Exactly how the Clinton Administration would deal with the passage of
Proposition 215 had been a lively subject of speculation. The
Administration took a hard line during the campaign, which surprised none
of Prop 215's proponents: Clinton could scarcely afford to appear "soft
on drugs" at a time when Bob Dole was getting some traction with the
issue. One of the Dole campaign's most effective and oftenrun spots
featured old footage of the President muttering that he regretted not
having inhaled. Once Clinton was safely reelected, however, some in the
medicalmarijuana movement held out hope the Administration would play
down the issue, treat California as an anomaly or, possibly; an
experiment.

But the history of the drug war is a history of increasing Federal power
(it had its origins in Richard Nixon's desire to "federalize" the crime
issue), and Proposition 215 (along with a similar initiative that passed
in Arizona) posed an unprecedented threat to that power that had to be
turned back. Moreover, Clinton's advisers reportedly feared that medical
marijuana could become the "gays in the military" of his secondterm
transition a tangential but distracting social issue that threatened to
expose him to attack from the right. The Administration reportedly
considered going to court to challenge the California law, but it
discovered it had no constitutional leg to stand on a state being free
to amend its criminal code. The decision was then made to go after the
doctors, the one group in California firmly under Federal control.

Coming in the middle of the slow news week between Christmas and New
Year's, the new Government initiative could not have made much more
noise. At the news conference, the phalanx of officials laid out the
Government's case against medical marijuana. The passage of Proposition
215 (and Proposition 200 in Arizona) "poses a threat" to the Federal war
against drugs, and the officials took pains to reassert the Federal
Government's powers, both to enforce the drug laws ("We want to make
clear," Attorney General Reno said, "that Federal law still applies") and
to regulate prescription drugs. McCaffrey spoke of the Federal
Government's special responsibility to insure the safety and
effectiveness of medicine through a drugapproval process that had
"prevented thalidomide and Laetrile and other nonsense substances from
going in front of the American public." Proposition 215 "is not a medical
proposition," McCaffrey told reporters. "This is the legalization of
drugs we're concerned about."

McCaffrey made much the same point when I spoke to him earlier this
month. He explained that "some very cunning people have displaced the
argument for legalization which Americans overwhelmingly reject to
one that is more acceptable." He attributes support in California, and
elsewhere, for medical marijuana to the fact that, understandably, "a lot
of Americans are worried about pain management."

McCaffrey went on to express concern about the referendum process that
legalized medical marijuana. Proposition 215 "isn't part of the medical
process

there's no physical exam, no prescription," he says. "An
aromatherapist, a 'care giver,' even a patient can grow their own in the
backyard& We don't tell people to grow their own heart medicine! We don't
decide flight rules for L.A. airport by plebiscite!"

McCaffrey is worried too about the effect medical marijuana will have on
marijuana use among teenagers. 'As the fear of marijuana continues to go
down," he told me, "use among young people goes up." Marijuana use among
teenagers has, in fact, been rising in recent years, though it has not
reached the levels (35 percent and more) seen in the 70's. "Kids are
hearing that marijuana is a medicine, that it can cure these various
illnesses. How can anything that's medicine be that bad?" McCaffrey
subscribes to the theory that marijuana is a "gateway" drug, and he cited
recent studies that have found a statistical correlation between teenage
marijuana use and later addiction to harder drugs. Anything that
diminishes the fear of marijuana should trouble us, he argues, which is
why Prop 215 sends a "terrible message" to the nation s youth.

But the loudest message of the news conference on Dec. 30 was the one
delivered to the doctors of California, who heard the Attorney General of
the United States tell them that the act of recommending marijuana to a
patient could cost them their livelihood. And in the short term, the
threat had the intended effect: doctors stopped writing letters of
recommendation; many even stopped discussing marijuana with their
patients, or returning calls from cannabis clubs seeking to confirm
diagnoses. More than one doctor told me that patients had probably been
better off before Proposition 215, when doctors had actually felt freer
to recommend marijuana.

It is true that marijuana had been a quiet, relatively uncontroversial
part of American medical practice for years before Proposition 215,
though it's hard to know exactly how commonly it was recommended. When,
in the mid80's, a D.E.A. administrative law judge held hearings on
rescheduling marijuana as a Schedule II drug so doctors could prescribe
it, he concluded that marijuana already had an "accepted medical use,"
especially among doctors treating cancer patients. ("Marijuana, in its
natural form, is one of the safest therapeutically active substances
known to man, Judge Francis Young wrote in a 1988 decision that was
promptly overruled by the D.E.A.) One Harvard Medical School survey of
2,000 oncologist s conducted in 1991 found that 44 percent had
recommended marijuana to their patients. I'm told it is not at all
uncommon to smell marijuana smoke in the cancer wards of American
hospitals.

Talking to doctors about marijuana, I heard little of the evangelical
fervor I came to expect from patients. With the exception of AIDS
specialists, few regarded marijuana as much more than a "second or third
line treatment" for their "refractory patients" the ones that don't
respond to conventional medicines. Many recognize the therapeutic value
of THC, but are troubled by the "delivery system" inhaled smoke that
contains some 400 poorly understood compounds, several of which are
carcinogens.

Dr. Debasish Tripathy; a prominent breast cancer specialist in San
Francisco, told me he typically has a handful of patients for whom
marijuana is the only drug that will quell the nausea induced by
chemotherapy nausea so debilitating that patients will sometimes choose
to discontinue treatment rather than endure it. Tripathy regards
marijuana as a treatment of last resort (though since Dec. 30 he has
declined to recommend it even in those cases), but he also emphasizes
just how important it is to have such drugs in the pharmacopeia. "The
whole notion of a 'best medicine' is erroneous," Tripathy explains,
because patients vary so in their response to drugs. "Indeed, the phrase
'best medicine' belies the concept of individualized care."

Like many of the doctors I spoke to, Tripathy seems somewhat mystified
by the Government's intransigence on the subject of marijuana,
particularly in view of its comparative safety. "Marijuana is far less
toxic than many of the medicines I prescribe to my cancer patients,"
Tripathy points out. Doctors are accustomed to objectively weighing the
benefits and risks of any treatment, and the unwillingness of the
Government simply to let science decide the issue of medical marijuana is
incomprehensible to them. Tripathy would like to see more studies,
especially trials comparing the effectiveness of Marinol and smoked

marijuana in combating nausea.

Dr. Donald Abrams, an AIDS researcher at the University of Califomia,
San Francisco, has been trying to organize just such a trial for four
years. Though the F.D.A. has approved his study; the D.E.A. and the
National Institute of Drug Abuse have refused to give him access to the
marijuana he needs to carry it out.

In the wake of 215's passage, General McCaffrey began calling for
"science not ideology" to settle the medicalmarijuana debate. McCaffrey
has ordered a comprehensive National Academy of Sciences review of the
literature on the subject, but the timing of the study it won't be
completed until shortly after the next round of ballot initiatives in
1998 prompts many advocates to dismiss it as a clever delaying tactic.
Even so, McCaffrey's call for more science is significant, for it
initiates a process that might prove ineluctable. A similar review
conducted during the Carter Administration wound up lending support to
the medical use of marijuana. (Though it was suppressed as a
result.)

For many California doctors, what the Government dismisses as "anecdotal
evidence" for the efficacy of marijuana is of course just an
unflattering name for their own clinical experience, which has already
been encouraging enough to justify the drug's use without waiting for
large clinical trials or F.D.A. approval. This is perhaps particularly
true among doctors who treat AIDS, a corner of American medicine that has
been especially openminded about experimental treatments and impatient
with the traditional drugapproval process. "Many of us have been willing
to work ahead of the data on AIDS," Capaldini told me. "Much of the
progress that's been made in the last few years has come from our
willingness to try nonstandard medicines." She cited as an example the
use of hormones to combat wasting syndrome.

Doctors who treat AIDS are by far the ones most enthusiastic about
medical marijuana. Dr. Virginia Cafaro is a physician with the Conant
Medical Group, the largest AIDS practice in San Francisco. Her first
encounter with medical marijuana came seven or eight years ago, when her
patients began reporting that smoking pot helped relieve their nausea and
stimulated their appetite. "I looked into it and found it was being used
by oncologist s," she told me, "so I began recommending it for cases
where nothing else was working."

But if the lack of big clinical trials and F.D.A. approval haven't
inhibited Dr. Cafaro from using medical marijuana in her practice,
General McCaffrey's Dec. 30 threat certainly has. "Since the threats by
Federal officials," she has written, "I have avoided directly broaching
the subject of medical marijuana even with patients who could, in my
judgment, obtain marked relief" from it. Other doctors have adopted a
"tell, don't chart" policy: they recommend marijuana, but don't write the
information down, either in a letter or on the patient's chart. Some told
me they now look askance at any new patient who inquires about marijuana,
wondering if perhaps he might be an undercover D.E.A. agent.

The doctors' paranoia was further fueled in January; when Dr. Robert
Mastroianni, a family physician in Pollack Pines, near Sacramento,
received an earlymorning visit from two D.E.A. agents. They produced a
letter of recommendation he'd written for medical marijuana after the
passage of 2l5, and asked to see his D.E.A. registration number. The
agents tried to interrogate him, but the doctor refused to answer
questions without a lawyer present. A local pharmacist was also
questioned by D.E.A. agents, who asked to review Mastroianni's
prescription records.

Later in January, Mastroianni and numerous other doctors supported a
dozen California physicians (including Cafaro and Tripathy) who filed a
classaction suit challenging the Government's policy of punishing
doctors who recommend marijuana. The suit argued that the threats made by
General McCaffrey and others on Dec. 30 violated the First Amendment
right of doctors to speak freely to their patients. The Government
responded that doctors were free to "discuss" marijuana, but not to
recommend" it, which was tantamount to aiding and abetting a Federal
crime. Federal Judge Fern Smith disagreed: "The First Amendment allows
physicians to discuss and advocate medical marijuana even though use of
marijuana itself is illegal." In April the judge issued a preliminary
injunction barring the Government from threatening or taking any action
against doctors who recommend marijuana to their patients. The Government
may eventually prevail at trial, but for the time being it has lost its
principal weapon against Proposition 215. Perhaps it is merely a
coincidence, but it was only days after Judge Smith issued her temporary
restraining order against the Government that the D.E.A. raided Flower
Therapy a raid that gave Californians a striking reminder of the
continued relevance of Federal power.

Even before Judge Smith's injunction, the Administration's tactic had
begun to look like a strategic blunder. For one thing, it has politicized
the medical establishment on medical marijuana in a way it hadn't been
before. Prominent medical journals leapt to the defense of California's
doctors, including the staid New England Journal of Medicine, which in
January entered the debate with a un characteristically heated editorial
that argued: "A Federal policy that prohibits physicians from alleviating
suffering by prescribing marijuana for seriously ill patients is
misguided, heavyhanded and inhumane." In May the California Medical
Association, which had conspicuously failed to support 215 last fall,
announced its support for a bill in the State Legislature to expand the
Compassionate Use Act by establishing a medicalmarijuana research center
at the University of California that would conduct clinical trials.

The Government's war against doctors may also have played into the hands
of its opponents in the drugpolicy reform movement. "Going after doctors
is the only thing they could have done that was dumber than going after
terminal patients," a leading promarijuana strategist told me. "From the
beginning our thesis has been that the medicalmarijuana issue will get
people to start questioning the larger war on drugs. It opens up a
contradiction between what the Government has been saying about drugs
and what people feel is correct. Dec.30 opened that contradiction even
further. Because how can you really say the drug war is about Americans'
health when you're going after their doctors?"