JUDGE DEFENDS DOCTORS IN POT FIGHT ;
GRANTS INJUNCTION TO STOP PROSECUTION FOR RECOMMENDING IT by EMELYN CRUZ LAT and Larry D. Hatfield
Copyright (c) 1997, The Hearst Corporation

A federal judge in San Francisco issued a temporary
injunction Friday preventing the government from taking
action against doctors who recommend marijuana for their
patients. U.S. District Judge Fern Smith said government
lawyers hadn't convinced her the U.S. had a clear policy on
the distinction between discussing marijuana with a patient
and actually recommending it.

"I am continually concerned with the distinction
between discussion and recommendation," she said in
ordering the government and lawyers for a doctors group to
have a settlement conference to discuss their differences.
"You should not have to wait and be careful about what you
say because you're unsure and concerned that you are
breaking the law."

Her injunction came in a suit brought by a group of Bay
Area doctors that contended governmental threats of
punishment for prescribing medical marijuana violated
their constitutional free speech rights and interfered with
doctorpatient relationships.

At midday, attorneys for both sides were meeting to set
a date for the settlement conference.

Doctors have a right to advise patients "with the full
understanding of what the law requires and forbids," Smith
said in granting the temporary injunction. She gave Justice
Department attorneys the opportunity to modify the
government policy but attorney Kathleen Muller said the
government would not agree to allowing physicians to
recommend marijuana use.

California voters approved the use of medical
marijuana in November but the Clinton Administration has
held that federal law supersedes the state's wishes.

At the heart of the debate is whether the Clinton
administration's drug policies violate physicians' free
speech rights to discuss a full range of treatments for
their patients.

Federal attorneys unsuccessfully sought to have the
suit dismissed.

The federal policy, outlined by U.S. drug czar Barry
McCaffrey on Dec. 30, says doctors who recommend or
prescribe marijuana could face criminal prosecution, lose
their federal authority to prescribe medications and be
excluded from Medicare and Medicaid.

Lawyers for the physicians contended Friday that the
federal position, although it does not prohibit discussion
of marijuana, has a chilling effect on doctors and is
confusing. "The government has failed to outline a clear
and unambiguous policy about what doctors can and can't say
to their patients about this issue," said San Francisco
attorney Lowell Finley, one of the plaintiffs' lawyers.

Federal lawyers have argued the government's policy was
not intended to hamper doctors' freedom to discuss various
treatments, but it prohibits them from prescribing or
recommending marijuana and other illegal drugs, which is a
violation of federal law.

At a press conference Thursday, Patricia Seitz, chief
legal counsel for the White House Office of National Drug
Control Policy, said the government's interest is in
protecting the public, especially children, from illegal
drugs.

"The concern that we have is that once you can
determine by the ballot box rather than a rigorous
scientific process what is a medicine, we start the
slippery slope," Seitz said. "What prevents us from
tomorrow saying, "OK, LSD is a great medicine, or heroin.'
This is the concern."

Finley said, "It is fair to say that the voters of
California and Arizona did not, by their vote, attempt to
make binding decisions on the medical efficacy of
marijuana. "What they said is patients should not be
subject to prosecution when they get marijuana based on the
advice of a physician that it provides relief from symptoms
when they suffer from a serious illness."

"The lawsuit is about whether a trained physician
should be permitted to fully discuss their views on whether
marijuana would provide benefits to a patient or not," he
said.

Seitz also disputed the free speech claim, saying,
"Speech that is used to violate the law is not protected by
the constitution."

What supporters of medical marijuana really want is
blanket immunity from prosecution, Seitz charged.

Appearing with Seitz was a doctor who treats AIDS
patients, who said more research is necessary to determine
marijuana's medical efficacy.

Although marijuana appears to be effective in
increasing patients' appetites and countering the wasting
syndrome common with AIDS, other synthetic drugs are more
or as effective, said Dr. Gary Cohan of the Pacific Oaks
Medical Group in Beverly Hills, which has a large AIDS
practice. Meanwhile, a San Francisco Board of Supervisors
committee Thursday sent to the full board a proposal to
provide legal backing for cityemployed doctors who
prescribe medicinal pot. It will be heard April 21.