Doctors, feds take pot fight to court

Emelyn Cruz Lat OF THE EXAMINER STAFF

Doctors who prescribe marijuana to treat their patients went to federal
court in San Francisco Friday to keep the government from penalizing them
for doing what they say they have a constitutional right to do.

Attorneys for a group of Bay Area physicians were seeking a preliminary
injunction prohibiting the federal government from penalizing and
prosecuting doctors who prescribe pot.

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 planned to ask U.S. District Court Judge Fern M. Smith to
dismiss the physicians' lawsuit on the grounds that the federal policy does
not violate free speech.

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 contend 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, who represents the plaintiffs.

Protecting the public

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.

What is free speech?

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.