U.S. APPEAL OF MARIJUANA CASE REJECTED

The Supreme Court announced yesterday that it will let stand a federal
appeals court ruling that bars the federal government from punishing
doctors who recommend marijuana to their patients.

Without comment, the court refused to hear the Bush administration's
challenge of a ruling last year by the U.S. Court of Appeals for the 9th
Circuit that upheld a federal district court injunction blocking
Washington's efforts to prevent doctors from telling patients marijuana
might help them. The federal policy violated the constitutional guarantee
of free speech, the San Francisco-based 9th Circuit court ruled.

The decision came as a surprise defeat for the federal government in its
battle against the "medical marijuana" movement. In his appeal petition to
the court, Solicitor General Theodore B. Olson, using the kind of language
that often persuades the justices to hear an appeal by the government, had
called the 9th Circuit decision "an issue of exceptional and continuing
importance" that "impairs the Executive's authority to enforce the law in
an area vital to the public health and safety."

Instead, the court took a step whose immediate political and practical
impact is favorable to the campaign for medical marijuana. The principal
effect is to allow doctors to recommend marijuana to patients - but not to
provide it to them.

That is important because medical marijuana laws generally permit the
possession of small amounts of marijuana only with some form of written
authorization from a doctor, though in California an oral recommendation
suffices.

"If there can be no recommendation, there can be no patients who benefit,"
said Graham Boyd, an American Civil Liberties Union lawyer who urged the
Supreme Court to reject the government's appeal. But now doctors can make
such recommendations, even in writing, without fear of federal
investigation, Boyd said.

"I can do my job again and have real conversations with my patients about
medical marijuana as part of their treatment options," said Marcus Conant,
the San Francisco-based AIDS doctor who filed the case with the support of
the ACLU.

The decision leaves intact a 2000 order by a California federal district
court that barred the federal government from acting on threats to deny
doctors who recommend marijuana the right to prescribe controlled
substances or to participate in Medicaid and Medicare.

However, ordinary possession and distribution of marijuana remain illegal
under federal and state laws in all nine states -- Alaska, Arizona,
California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington -- that
have medical marijuana laws on the books. Maryland recently enacted a law
that permits those convicted of marijuana possession to argue for a reduced
sentence based on medical need.

Though federal prosecutions of people for possession of small amounts of
marijuana are rare, the threat of federal legal action against those who
supply marijuana to people with a doctor's note remains. In 2001, the
Supreme Court upheld a Justice Department effort to shut down an Oakland
"cannabis club," ruling that there is no "medical necessity" exception to
the federal ban on marijuana possession.

Advocates of medical marijuana laws say that smoking marijuana is often the
only way that patients with cancer or AIDS can cope with pain or relieve
nausea.

But the Bush administration, like the Clinton administration before it,
says that federal law still classifies marijuana as a substance with "no
currently accepted medical use" and "a high potential for abuse."

After voters in California and Arizona adopted medical marijuana ballot
initiatives in 1996, the Clinton administration warned doctors that the
Drug Enforcement Administration (DEA) would strip away the right to
prescribe federally controlled medication from the prescription license of
any physician found "recommending or prescribing" marijuana. Doctors who
recommend marijuana could also face criminal prosecution and exclusion from
Medicaid and Medicare, the statement added.

The Department of Health and Human Services followed with a Feb. 27, 1997,
letter to medical association leaders around the country saying that the
federal government "encourage[s] physicians to talk with patients about
their concerns" but that doctors "may not intentionally provide their
patients with oral or written statements in order to enable them to obtain
controlled substances in violation of federal law."

But these policies never took effect because, in early 1997, Conant and
others sued in federal district court and obtained a court order barring them.

The case is Walters v. Conant, No. 03-40.