MEDICAL MARIJUANA CAUSE BOOSTED

WASHINGTON - Doctors in several states may recommend the use of
marijuana to their patients without fear that they will be
investigated or punished by federal authorities.

In a victory for the advocates of medical marijuana, the Supreme Court
on Tuesday rejected the Bush administration's appeal of a ruling that
held doctors have a free-speech right to advise their sick patients of
the benefits of marijuana.

By rejecting the appeal, the Supreme Court effectively upheld the
ruling handed down by the 9th U.S. Circuit Court of Appeals. It
applies to nine states, including seven that have decriminalized the
use of marijuana for medical purposes.

Tuesday's decision is not an official ruling, and it does not finally
resolve the clash between Washington and the states over medical marijuana.

However, it clears the way for doctors to tell patients the possible
benefits of medical marijuana and to give them the permission to use
it.

In 1996, California voters gave sick people a right to use marijuana
to relieve their pain or nausea so long as they had the "written or
oral recommendation or approval of a physician."

But U.S. authorities have refused to budge and continue to insist that
any use of marijuana violates federal drug laws.

Under the Clinton administration, federal officials moved to shut down
cannabis clubs that had formed to provide marijuana to patients, and
the Supreme Court upheld this assertion of federal power two years
ago.

In 1997, federal authorities also threatened doctors who recommended
marijuana.

Since pharmaceuticals are tightly regulated by the federal government,
officials said they might strip doctors of their right to prescribe
medicines if they violated the no-marijuana policy.

But a group of doctors and patients went to federal court in San
Francisco and challenged that threat on First Amendment grounds. A
judge stopped the enforcement policy from taking effect, and Tuesday's
order effectively kills it.

Advocates of the state's "compassionate use" policy on marijuana
celebrated the victory.

"The Supreme Court's action today protects doctors and patients from
government censorship of open and honest discussions in the exam
room," said Graham Boyd, director of the drug policy litigation for
the American Civil Liberties Union, who represented the physicians and
patients who brought the lawsuit.

"Patients deserve access to accurate information about all possible
medicines from their doctors, including medical marijuana."

Dr. Marcus Conant, an AIDS specialist in San Francisco and the lead
plaintiff in the case, said the court's action "means that I can do my
job again and have real conversations with my patients about medical
marijuana as part of their treatment options."

The states most directly affected by the ruling are Alaska, Arizona,
California, Hawaii, Nevada, Oregon and Washington. Voters in Colorado
and Maine have also approved the medical use of marijuana.

Robert MacCoun, a UC Berkeley professor of law and public policy,
called the decision a significant setback for the federal government's
effort to crack down on medical marijuana.

"I do see the momentum largely with the medical marijuana movement,"
MacCoun said.

"It wouldn't surprise me at all if some other states that were sitting
on the sidelines because of fears about getting tangled up with the
federal government now move in the same direction."

It is rare in a major case for the Supreme Court to refuse to even
hear the federal government's appeal when it loses in the lower courts.

Last year, the 9th Circuit Court said doctors have a "core First
Amendment" right "to speak frankly and openly with their patients," a
freedom that cannot be infringed by the government.

But in his appeal on behalf of federal drug czar John Walters, U.S.
Solicitor General Theodore Olson argued that because drugs are subject
to "tight regulation," doctors are not free to recommend potentially
dangerous substances.

It takes the votes of four of the nine justices to take up an appeal,
and on Tuesday, the court announced that it was dismissing the case of
Walters v. Conant.

Backed by groups such as the California Medical Association, the
American Academy of Pain Medicine and the Society of General Internal
Medicine, attorneys for Conant and six other physicians argued that
the Justice Department push threatened to erode the doctor-patient
relationship and ran counter to medical ethics.

They suggested in legal briefs that free discourse between a doctor
and patient cannot be suppressed even when it concerns illegal activity.

"Our feeling all along was that the drug war didn't change the First
Amendment nor the practice of medicine," said Daniel Abrahamson, an
attorney for the Drug Policy Alliance in Oakland.

"It's always been doctors, not cops, who have made medical
decisions."

Despite a string of victories for physicians in the lower courts, a
chill remained that prompted many doctors to avoid the topic of
medical marijuana with their patients.

"They steered a wide path around medical marijuana for fear of
punishment," Abrahamson said.

Dr. Milton Estes, another HIV-AIDS specialist who joined the legal
case against the federal government, said he shied away from talking
to patients about medical marijuana even though they had prevailed at
each step in the case.

"Even though the attorneys assured me that as a plaintiff I had an
even higher level of protection, I still felt really concerned and
fearful about getting into these discussions with patients," he said.
Now, he said, "there will be much less reluctance" among physicians.

Estes said that the need for cannabis has lessened for AIDS patients
because of advances in life-sustaining treatments, but that it remains
part of the arsenal of medicine. In particular, cannabis can help
long-term survivors dealing with lingering side effects and those for
whom aggressive treatment has failed.