SUPREME COURT UPHOLDS DOCTORS' RIGHT TO RECOMMEND MEDICAL MARIJUANA

In a silent rebuke to the Bush administration, the US Supreme Court
Tuesday refused to hear the federal government's appeal of a lower
court decision blocking the feds from punishing doctors who recommend
marijuana to their patients. While drug reform and patient advocates
hailed the decision as a victory, the ruling does not make medical
marijuana legal, nor does it prevent the federal government from
continuing its policy of raids and arrests of medical marijuana
providers. It does, however, block the Justice Department from
threatening to suspend the prescription privileges of doctors who
recommend medical marijuana. In so doing, it removes one tactic from
the Justice Department's arsenal of techniques to harass the medical
marijuana movement.

The case in question, Conant vs. Walters, originated in the Clinton
administration's response to the 1996 passage of Proposition 215,
which legalized medical marijuana in California under state law.
Stunned by the measure's success, then drug czar Gen. Barry McCaffrey
sought ingeniously to thwart the will of California voters by scaring
doctors into not recommending or even discussing medical marijuana
with their patients. While drafters of Prop. 215 sought to avoid
conflict with federal law by not requiring a doctor's prescription,
only a recommendation, McCaffrey countered that move by threatening
doctors with the loss of DEA-controlled prescription privileges if
they mentioned pot.

A group of California physicians and patients led by Dr. Marcus Conant
filed suit against the federal government, charging that the no-talk
policy violated their First Amendment right to free speech.
Administrations changed as the case dragged on, but the John Ashcroft
Justice Department was more than eager to carry on. After being handed
a defeat by the 9th US Circuit Court of Appeals in San Francisco, the
feds appealed to the Supreme Court. On Tuesday, the court in effect
told them to go away.

Drug reform groups involved in the legal effort hailed the ruling,
with the Marijuana Policy Project (http://www.mpp.org) calling it "an
historic victory for patients and doctors." The Drug Policy Alliance
(http://www.drugpolicy.org), which provided financial assistance for
the court battle, characterized the decision as "a major victory."

"By deciding not to hear this case, the Supreme Court has eliminated
any doubt that states have the right to protect medical marijuana
patients under state law, and that physicians have the right to give
patients honest advice and recommendations, whether the federal
government approves or not," said MPP executive director Rob Kampia in
a statement applauding the decision.

The lead plaintiff in the case, Dr. Conant, a San Francisco AIDS
specialist, told the Los Angeles Times he was very pleased. "This
means I can do my job again and have real conversations with my
patients about medical marijuana as part of their treatment options."

Likewise, Graham Boyd of the ACLU's Drug Policy Litigation Project,
who argued the case for the plaintiffs, told the Times the decision
not to hear the appeal was a victory for patients and doctors alike.
"The Supreme Court's action today protects doctors and patients from
government censorship of open and honest discussions in the exam
room," said Boyd. "Patients deserve access to accurate information
about all possible medicines from their doctors, including medical
marijuana."

It is rare for the Supreme Court to refuse to even hear federal
government appeals of lower court decisions, but that is what it did
Tuesday. The Justice Department could not get the minimum of four
justices to agree to hear the case. The justices appear to have been
content with the 9th Circuit Court of Appeals' ruling, which called
doctors' ability "to speak frankly and openly" with patients a "core
First Amendment right" that could not be infringed by the government.

In briefs submitted to the court, patient and medical groups such as
the California Medical Association, the American Academy of Pain
Medicine, and the Society of General Internal Medicine compared
doctors recommending medical marijuana to physicians providing advice
on "red wine to reduce the risk of heart disease, Vitamin C,
acupuncture, or chicken soup." Revoking the prescription-writing
privileges of doctors who recommended pot to patients would erode the
patient-doctor relationship and ran counter to accepted medical
ethics, they charged.

The Justice Department argued that the case was about the public
health, not free speech. "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," argued Solicitor General Ted Olsen. "It is the conduct
of the practice of medicine. As such, it is subject to reasonable
regulation."

But in rejecting the Justice Department's appeal, the Supreme Court
made clear it wasn't buying that argument. The ruling is important
because if the court had accepted the case and eventually ruled in
favor of the federal government, state medical marijuana laws would
have been essentially nullified -- all eight states with medical
marijuana laws have some sort of medical recommendation requirement.
If doctors could not recommend, patients could not legally receive
their medicine. Now, however, the federal government will have to find
another means of suppressing the medical marijuana movement.