Medical Marijuana

DOCTORS SHOULD BE FREE TO ADVISE USE

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.
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 9th U.S. Circuit Court of
Appeals.

In the case of Conant v. 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 9th 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.

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
v. 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 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 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 verdict and apologizing to Rosenthal. The judge sentenced
him to one day in jail and the lifelong title of "convicted felon."

Meanwhile, 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.