COURT WEIGHS MEDICAL MARIJUANA DISPUTE

In test of California ballot measure, U.S. government seeks right to
punish doctors who discuss drug with patients.

Seven years after California voters opened the door to medical
marijuana, the Supreme Court is now being asked to decide whether
doctors should be allowed to recommend the drug to patients.

Walters v. Conant, No. 03-40, is one of dozens of cases the Supreme
Court will likely consider at its private conference on Oct 10. The
litigation stems from Proposition 215, a statewide ballot initiative
approved by voters in 1996.

Proposition 215 gave patients the right to seek physician-sanctioned
marijuana, but the U.S. government objected -- citing federal laws
that restrict the use of marijuana. In 1997, a group of physicians and
patients sued the feds, trying to stop the government from revoking
the prescription licenses of doctors who recommend marijuana as treatment.

In August 1999, U.S. District Judge William Alsup of the Northern
District of California entered a permanent injunction against
government enforcement of the rule against doctors. A panel of the
U.S. Court of Appeals for the 9th Circuit, in a ruling written by
Chief Judge Mary Schroeder, affirmed the injunction in October 2002.

At the Supreme Court, John Walters, director of the White House Office
of National Drug Control Policy, is the named appellant in the case.
In his petition on behalf of Walters, Solicitor General Theodore Olson
argues that the 9th Circuit's decision restricts the government's
ability to investigate possible violations of the law.

"[The decision] impairs the Executive's authority to enforce the law
in an area vital to the public health and safety," Olson wrote in the
petition. "The practice of medicine is subject to reasonable licensing
and regulation, even where that practice involves speech."

Dr. Marcus Conant, medical director of a private HIV/AIDS practice in
San Francisco, asserts that doctors have First Amendment rights to
openly discuss with their patients the risks and benefits of using
marijuana to relieve symptoms of diseases such as AIDS, glaucoma, and
multiple sclerosis.

"This case concerns the distribution of medical information, not
distribution of drugs," wrote Conant's lawyer Graham Boyd in a brief
opposing high court review. Boyd is director of the American Civil
Liberties Union's Drug Policy Litigation Project. "Patients are free
to follow or ignore the advice, but the advice itself does not
authorize or cause the distribution of a drug."

Olson's brief counters,"It is beyond dispute that a physician's
recommendation that a patient take Schedule I controlled substances
such as heroin or LSD would . . . justify investigation and potential
revocation of the physician's registration. There is no statutory or
First Amendment basis for treating marijuana, another Schedule I
substance, differently."

Attorneys for Conant say review by the Supreme Court is unnecessary
because the District Court's decision does not infringe on federal
statutes that prohibit selling marijuana, and the decision creates no
conflict among the circuits.

"This is a unique case that arises out of the federal government's
response to California's law," Boyd wrote. "No disagreement exists
among the courts of appeals on the issues raised in the case, and no
disagreement appears likely to emerge in the future."

Seven states besides California -- Alaska, Arizona, Colorado, Maine,
Nevada, Oregon, and Washington -- have enacted similar medical
marijuana laws by voter initiative.