SO LONG TO A MISGUIDED GAG RULE ON THE MEDICINAL USE OF MARIJUANA

WASHINGTON -- It was a small step for the U.S. 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 dangerous federal gag rule to keep the
medicinal use of marijuana illegal, even when states want to legalize
the drug.

The rule prevented doctors from recommending marijuana to their ill
patients or even talking about the medicinal benefits of the weed.

Had the Supreme Court decided to hear the case, it would have had a
golden opportunity to rip the innards out of laws passed by various
states 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
what is reputedly the most liberal appeals court, the San
Francisco-based 9th 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 reducing
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 now free 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 marijuana remains illegal under federal law, which has caused some
interesting legal wranglings. Arizona, for example, passed a marijuana
legalization law in 1996 but, unlike in the other states, it has not
been enforceable because it stipulates a doctor's "prescription,"
which is regulated by federal law.

The U.S. 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 to ease the pain of an illness.

It is risky to read too much into any decision by the Supreme Court.
Sometimes, for example, the justices will take a pass on an appeal but
decide to hear a similar case later that is brought on different grounds.

But considering the strong leanings in favor of states' rights by
Chief Justice William Rehnquist and some others on this court, it is
not hard to understand why the justices decided to err on the side of
free speech, public health and patient-doctor privacy. Good for the
justices.

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 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. 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.