Judge: Docs Can't Help Get Pot

By BOB EGELKO

SAN FRANCISCO (AP) California doctors can recommend marijuana to their
patients without punishment as long as they don't help patients buy or grow
the drug, a federal judge ruled Wednesday.

Calling the Clinton administration's policy on medical marijuana vague and
contradictory, U.S. District Judge Fern Smith said the federal government has
no right to stop doctors from recommending marijuana to treat certain
diseases, even though the treatment may be illegal.

``The government's fear that frank dialogue between physicians and patients
about medical marijuana might foster drug use ... does not justify infringing
First Amendment freedoms,'' Smith wrote.

``The First Amendment allows physicians to discuss and advocate medical
marijuana, even though use of marijuana itself is illegal.''

Smith issued a preliminary injunction in a doctors' lawsuit that was similar
to a temporary restraining order she issued April 11 allowing doctors to
recommend marijuana without fear of criminal prosecution.

This time, Smith said she would bar federal action such as prosecution or
withdrawal of prescription licenses against doctors who discuss or
recommend marijuana to their patients, but would ``draw the line at criminal
conduct,'' such as helping buy or cultivate marijuana.

The order applies to doctors who recommend marijuana for patients with AIDS
or the AIDS virus, cancer, glaucoma, and seizures or muscle spasms associated
with a chronic, debilitating condition.

The 10 doctors and five patients who filed the lawsuit say marijuana can
relieve pain for all of those conditions, stimulate appetite, or combat the
debilitating effects of chemotherapy.

The federal government maintains that marijuana has no proven medical
benefits.

Unless overturned by a higher court, the injunction will remain in effect
until the lawsuit goes to trial.

A lawyer for the doctors and patients who filed the suit said the ruling
gives them what they wanted: a clear policy, and the freedom to give and
receive appropriate medical advice.

``Physicians are free to discuss marijuana in an open and honest manner and
to recommend marijuana to patients'' with specific conditions, said attorney
Graham Boyd.

The suit was filed after a state law was passed in November allowing patients
to grow and possess marijuana for medical use at the recommendation of their
doctors. Possession and cultivation remain federal crimes, however.

Bob Weiner, spokesman for the Office of National Drug Control Policy, said
the administration would not comment until Justice Department lawyers
reviewed the ruling.

The government can appeal to the 9th U.S. Circuit Court of Appeals and can
ask the court to suspend the injunction during the appeal.

White House drug policy chief Barry McCaffrey said in December that any
doctors who prescribed or recommended marijuana would lose their federal
authority to prescribe drugs, would be excluded from Medicare and Medicaid
and could face criminal charges.

Two months later, the administration issued a clarifying statement saying
doctors could discuss marijuana with their patients as long as they did not
help patients obtain the drug.

But administration lawyers have argued before Smith that a doctor's
``recommendation'' of marijuana was the equivalent of a prescription and
could be grounds for punishment.