NO MORE 'REEFER MADNESS'

WASHINGTON - It was a small step for the Supreme Court, but one giant leap
toward a sane drug policy.

I'm talking about the high court's refusal Tuesday to hear the Bush
administration's appeal of a lower court ruling allowing doctors to
recommend the medicinal use of marijuana to their patients.

Had the Supreme Court decided to hear the case, it would have had a golden
opportunity to rip the innards out of laws various states have already
passed to legalize or decriminalize the medicinal use of marijuana.

But, it didn't. Instead, this conservative Supreme Court wisely decided to
reject the Bush administration's appeal of a ruling that came from the most
reputedly liberal appeals court, the San Francisco-based Ninth U.S. Circuit
Court of Appeals.

In the case of Conant vs. Walters, Dr. Marcus Conant, a San Francisco AIDS
specialist, challenged the federal policy. He and other doctors argued
quite reasonably that they should be as free to discuss the pros and cons
of marijuana as they are to talk about red wine to reduce the risk of heart
disease - or about "vitamin C, acupuncture or chicken soup."

The Ninth Circuit agreed. Although doctors still can be punished if they
actually help patients obtain the drug, at least they are free now to
discuss the subject.

So far, eight states have laws legalizing marijuana for patients with
physician recommendations: Alaska, California, Colorado, Hawaii, Maine,
Nevada, Oregon and Washington. Thirty-five states have passed legislation
that reduces penalties for medicinal use of marijuana or otherwise
recognizes medicinal value.

But the sale or use of marijuana remains illegal under federal law, which
has caused some interesting legal wranglings. Arizona, for example, passed
a legalization law in 1996 but, unlike the others, it has not been
enforceable because it stipulates a doctor's "prescription," which is
regulated by federal law, instead of a "recommendation," which the Conant
vs. Walters decision freed from federal restriction.

The Supreme Court, in its wisdom, declined to be persuaded by Solicitor
General Theodore Olson's argument that this was a law enforcement issue,
not a free speech issue. "The provision of medical advice - whether it be
that the patient take aspirin or vitamin C, lose or gain weight, exercise
or rest, smoke or refrain from smoking marijuana - is not pure speech," he
said in court papers. "It is the conduct of the practice of medicine. As
such, it is subject to reasonable regulation."

If so, the high court does not appear to have found a compelling reason for
"reasonable regulation" to include banning doctors from freely discussing
marijuana among other options to which a patient might turn.

It's risky to read too much into any decision by the Supreme Court to take
a pass on an appeal. Sometimes, for example, the court decides to hear a
similar case later brought on different grounds.

But, given the long-standing record of Chief Justice William Rehnquist and
others on the court of strong leanings in favor of state's rights, it's not
hard to understand why the justices decided to err on the side of free
speech, public health and privacy in leaving the highly personal matter of
doctor-patient consultations to the states. Good for them.

Now they should take the next step: Get the federal government off the
backs of state medicinal marijuana laws. Then we might avoid atrocities
like the Ed Rosenthal case. He was convicted earlier this year under
federal law of growing and distributing cannabis, even though he was
licensed by the city of Oakland to do so under California's medical
marijuana statute.

The judge in his case put a gag on attempts by Rosenthal's attorney to
inform the jury that Rosenthal's actions were legal under state law. After
his conviction, seven jurors took the extraordinary step of publicly
repudiating their own verdict and apologizing to Rosenthal. The judge
sentenced him to one day in jail and the lifelong title of "convicted felon."

Meanwhile, back here in Washington, House bills to leave the medicinal
marijuana issue to the states have pulled together sponsors as diverse as
liberal Barney Frank (D-Mass.) and libertarian Dana Rohrabacher (R-Calif.).
Unfortunately, the legislation languishes. Polls tend to show a large
majority of Americans support allowing marijuana for medicinal use,
although not necessarily for recreational use. But progress is held up by a
vocal minority of anti-pot zealots who would rather treat marijuana as a
matter of crime and punishment instead of public health.

CLARENCE PAGE is a Chicago Tribune columnist