JUSTICES SAY DOCTORS MAY NOT BE PUNISHED FOR RECOMMENDING MEDICAL MARIJUANA

WASHINGTON, Oct. 14 - The Supreme Court, in a silent rebuff on Tuesday
to federal policy on medical marijuana, let stand an appeals court
ruling that doctors may not be investigated, threatened or punished by
federal regulators for recommending marijuana as a medical treatment
for their patients.

As a result, doctors in California and six other Western states where
voters or legislators have approved marijuana for medical uses like
pain relief may now discuss it freely with their patients without fear
of jeopardizing their federal licenses to prescribe drugs. Advocates
of medical marijuana greeted the court's action as a significant and
surprising victory.

In 1996, immediately after California voters approved a medical
marijuana initiative known as the Compassionate Use Act, the Clinton
administration warned doctors that recommending marijuana "will lead
to administrative action by the Drug Enforcement Administration to
revoke the practitioner's registration." The Bush administration
carried the policy forward and appealed the ruling by the United
States Court of Appeals for the Ninth Circuit last October that the
federal policy violated both the free speech rights of doctors and the
"principles of federalism."

While states have authority to issue licenses to practice medicine, it
is the Drug Enforcement Administration that issues licenses to
prescribe drugs, without which doctors could not remain in business as
a practical matter.

The Supreme Court's action, which it took without comment, was
unexpected, given that the court is nearly always willing to defer to
the executive branch at least to the extent of giving a hearing to a
government policy that a lower court has invalidated. The justices may
have been persuaded by the appeals court's strong opinion, which was
joined by all three members of a panel that included one of the Ninth
Circuit's most liberal members, Senior Judge Betty B. Fletcher, and
one of its most conservative, Judge Alex Kozinski.

Chief Judge Mary M. Schroeder wrote the opinion, which said the
government was impermissibly seeking to "punish physicians on the
basis of the content of doctor-patient communications" and to condemn
a particular viewpoint, which she said was "especially troubling."
In a concurring opinion, Judge Kozinski said the case was squarely
governed by the Supreme Court's states'-rights rulings in a series of
recent federalism decisions. The Ninth Circuit upheld an earlier
ruling by a federal district judge, William H. Alsup, in San Francisco.

Under California's law, a patient whose doctor has approved or
recommended marijuana will not be prosecuted by state law enforcement
authorities. Of the nine states within the Ninth Circuit, seven -
Alaska, Arizona, Hawaii, Nevada, Oregon and Washington, in addition to
California - authorize the medical use of marijuana, as do Maine,
Colorado and Maryland.

In the California case, Walters v. Conant, No. 03-40, 10 doctors, 6
patients and 2 organizations brought a class-action lawsuit in 1997 to
challenge the Clinton administration policy. One of the plaintiffs'
lawyers, Daniel N. Abrahamson of the Drug Policy Alliance, an advocacy
group, said on Tuesday that about 20,000 Californians were using
marijuana for medical purposes.

Another of the lawyers, Graham Boyd, director of the American Civil
Liberties Union's Drug Policy Litigation Project, said that had the
court taken the case and overturned the Ninth Circuit, "it would have
been the end of medical marijuana in one fell swoop."

In its Supreme Court appeal, the Bush administration called the Ninth
Circuit's ruling "an unprecedented judicial intrusion on the executive
branch's investigatory authority."