HIGH COURT SIDES WITH DOCTORS ON MEDICAL MARIJUANA

Physicians can recommend

WASHINGTON - The Supreme Court cleared the way Tuesday for state laws
allowing ill patients to smoke marijuana if a doctor recommends it.

Justices turned down the Bush administration's request to consider
whether the federal government can punish doctors for recommending or
perhaps just talking about the benefits of the drug to sick patients.
An appeals court said the government cannot.

Nine states have laws legalizing marijuana for people with physician
recommendations or prescriptions: Alaska, Arizona, California,
Colorado, Hawaii, Maine, Nevada, Oregon and Washington. And 35 states
have passed legislation recognizing marijuana's medicinal value.

But federal law bans the use of pot under any circumstances.

The case gave the court an opportunity to review its second medical
marijuana case in two years. The last one involved cannabis clubs.

This one presented a more difficult issue, pitting free-speech rights
of doctors against government power to keep physicians from
encouraging illegal drug use. A ruling for the Bush administration
would have made the state medical marijuana laws unusable.

Some California doctors and patients, in filings at the Supreme Court,
compared doctor information on pot to physicians' advice on "red wine
to reduce the risk of heart disease, vitamin C, acupuncture, or
chicken soup."

The administration argued that public heath, not the First Amendment
free-speech rights of doctors or patients, was at stake.

"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. It is the conduct
of the practice of medicine. As such, it is subject to reasonable
regulation," Solicitor General Theodore Olson said in court papers.

In states with medical marijuana laws, doctors can give written or
oral recommendations on marijuana to patients with cancer, HIV and
other serious illnesses.

Even some supporters of the laws had expected the Supreme Court to
step into the case. They said the court's refusal to intervene,
although it does not address the merits of the case, could encourage
other states to consider passing medical marijuana laws.

"It finally definitively puts to rest these federal threats against
doctors and patients," said Graham Boyd, an American Civil Liberties
Union attorney representing patients, doctors, and other groups in the
case.

Robert Kampia, head of the Marijuana Policy Project in Washington,
said the 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."

Keith Vines, a prosecutor in San Francisco who used marijuana to
combat HIV-related illnesses, was among those who challenged a federal
policy put in place during the Clinton administration. That policy
required the revocation of federal prescription licenses of doctors
who recommend marijuana.

"If the government is zipping them up, and we're not being told about
options, that's negligence," Vines said.

Policy supporters contend the U.S. Drug Enforcement Administration
must be allowed to protect the public.

The San Francisco-based 9th U.S. Circuit Court of Appeals said that
physicians should be able to speak candidly with patients without fear
of government sanctions, but they can be punished if they actually
help patients obtain the drug.

The case is Walters v. Conant, 03-40.