Judge Supports California Doctors on Marijuana Issue

By TIM GOLDEN

SAN FRANCISCO A federal district judge on Friday
barred the Clinton administration from taking action
to punish doctors in California who recommended
marijuana to their patients under a new state law.

The restraining order, issued by Judge Fern Smith, will
at least temporarily stop the federal government's
effort to undermine the California law by threatening to
prosecute or strip the prescription licenses of doctors
who endorse the medical use of the drug.

But Judge Smith also ordered lawyers for the
administration and those representing a group of doctors
who filed suit against the government three months ago
to begin meeting with another federal judge to try to
work out a settlement of the dispute.

While the future of the law remains far from clear, its
proponents hailed the ruling Friday as an important
victory in their campaign to make marijuana available to
people suffering from diseases like cancer, glaucoma and
AIDS.

"The federal government, as part of its war on drugs,
had declared war on California doctors," said Graham
Boyd, who argued the case for the doctors. "Now they no
longer need to fear draconian federal punishments for
recommending marijuana."

Clinton administration officials have denounced the
California law and a similar successful ballot
initiative in Arizona as significant threats to the
government's efforts to limit the traffic in illegal
drugs and to persuade younger Americans, in particular,
not to use them.

California's law, which went to the voters in November
as Proposition 215, legalizes the possession or
cultivation of marijuana when its use is "recommended"
by a doctor. Under a more complicated procedure in
Arizona, doctors can actually prescribe other Schedule 1
designated drugs, including heroin and methamphetamine.

The authors of Proposition 215 sought to make it
possible for doctors to suggest the use of marijuana to
their patients without putting the legislation in
conflict with federal laws that bar the use and
distribution of controlled substances. And it was an
early sign of their success when, little more than a
month after its passage, Justice Department lawyers
decided not to try to fight the measure in the courts.

Instead, the White House Office of National Drug Control
Policy led the government in a publicrelations
offensive.

A handful of agencies, like the Department of
Transportation, have reiterated federal laws against
operating cars, aircraft and equipment while under the
influence of marijuana.

Under the auspices of the National Institutes of Health,
government scientists have also undertaken to determine
once and for all whether marijuana has any legitimate
value for such problems as the nausea often caused by
chemotherapy, the eye pressure often associated with
glaucoma and the "wasting" syndrome that afflicts people
with AIDS.

Most important, though, lawenforcement officials have
tried to frighten doctors away from the new law by
warning that they could lose the prescription licenses
they receive from the Drug Enforcement Administration or
could even face criminal prosecution.

Both sides expected that they would eventually meet in
court when the federal government moved against a doctor
or patient who tried to make use of the law.

But in the suit filed on Jan. 14 on behalf of a group of
California doctors, Boyd and other lawyers supporting
the law preempted such a test case, arguing that the
threat constituted a violation of the physicians' right
to free speech. The doctors were being enjoined, they
asserted, from simply discussing with their patients a
treatment they had legitimate reason to think might be
helpful.

The legal counsel for the drugpolicy office, Patricia
Seitz, said the government respected the right of
doctors to discuss the benefits and hazards of
treatments with their patients. But it opposes any
effort by physicians to help them obtain illegal drugs.

"It is not protected speech if that speech is used to
violate the law," Ms. Seitz said. "The issue always
boils down to what is the doctor's intent."

In issuing the temporary restraining order Friday, Judge
Smith said the doctors had raised "serious questions"
about whether the federal government's threats of
punishment are constitutional. Because the case involves
the First Amendment, she added, the possibility of the
sort of harm to the doctors that might warrant
protection by the court is especially clear.

The doctors' lawyer, Boyd, said those findings would by
themselves justify the granting of a preliminary
injunction to block the administration's policy if the
two sides are unable to resolve their differences in the
settlement effort that is to get under way next week
with another federal district judge acting as a
mediator.

A federal government lawyer in the case disagreed.

"We didn't lose altogether," said the official, who
briefed reporters on the condition that he not be
identified. Referring to Judge Smith, he added, "She is
just keeping the status quo until we reach a settlement.

"Ultimately, if there is an injunction that says we
cannot enforce the Controlled Substances Act, we will
probably appeal her decision."