DOCTORS CAN RECOMMEND MARIJUANA

SAN FRANCISCO -- For the first time ever, a federal appeals court has ruled
that the government cannot revoke the prescription drug licenses of doctors
who recommend marijuana to sick patients.

A three-judge panel also ruled unanimously Tuesday that the Justice
Department cannot investigate doctors for merely recommending marijuana to
patients, upholding a 2-year-old court order that prohibited such federal
action.

The 9th U.S. Circuit Court of Appeals said that such investigation would
interfere with the free-speech rights of doctors and patients.

"An integral component of the practice of medicine is the communication
between doctor and a patient. Physicians must be able to speak frankly and
openly to patients," Chief Circuit Judge Mary Schroeder said.

Federal prosecutors argued that doctors who recommend marijuana use are
interfering with the drug war and circumventing the government's judgment
that the illegal drug has no medical benefit.

But the San Francisco-based court, noting that doctors are not allowed to
dispense marijuana themselves, said physicians had a constitutional right
to speak candidly with their patients about marijuana without fear of
government sanctions.

Doctors who recommend marijuana in the eight states that have medical
marijuana laws "will make it easier to obtain marijuana in violation of
federal law," government attorney Michael Stern had said.

The Justice Department had no immediate comment.

In a concurring opinion, Judge Alex Kozinski wrote that there was a wealth
of evidence that may support marijuana use for sick patients, and said the
government attacked doctors as a means to paralyze California's medical
marijuana laws.

The case was brought by patients' rights groups and doctors who said they
have been fearful of recommending marijuana, even if it's in a patient's
best interest.

U.S. District Judge William Alsup blocked the Justice Department from
revoking doctors' Drug Enforcement Administration licenses to dispense
medication "merely because the doctor recommends medical marijuana to a
patient based on a sincere medical judgment." Alsup's order also prevented
federal agents "from initiating any investigation solely on that ground."

The case was an outgrowth of Proposition 215, which California voters
approved in 1996. It allows patients to lawfully use marijuana with a
doctor's recommendation.

Following California, Alaska, Arizona, Hawaii, Maine, Nevada, Oregon and
Washington adopted laws allowing the sick to use marijuana with a doctor's
recommendation.

The Clinton administration said doctors who recommended marijuana would
lose their federal licenses to prescribe medicine, could be excluded from
Medicare and Medicaid programs, and could face criminal charges. The Bush
administration continued Clinton's fight.

The government argued that doctors were aiding and abetting criminal
activity for recommending marijuana because it's an illegal drug under
federal narcotics laws.

But the appellate court said doctors could be liable only if they actually
assisted patients in acquiring marijuana. Merely recommending the drug
"does not translate into aiding and abetting, or conspiracy," Schroeder wrote.

Last year, the U.S. Supreme Court said clubs that sell marijuana to the
sick with a doctor's recommendation are breaking federal drug laws.

Pot clubs continue to operate and dole out marijuana to those with a doctor
recommendation, including several in San Francisco, as local authorities
look the other way. Many cities and counties issue identification cards for
sick patients with a doctor's note recommending marijuana.

Federal officials have raided many marijuana clubs in California, and a
case brought by an Oakland pot club challenging such raids is pending
before the 9th Circuit. That case argues that the states have the right to
experiment with their own drug laws and that Americans have a fundamental
right to marijuana as an avenue to be free of pain.