COURT: DON'T TREAD ON DOCTORS WHO RECOMMEND MEDICAL MARIJUANA

SAN FRANCISCO -- A federal appeals court ruled for the first time Tuesday
that the government cannot revoke the prescription drug licenses of doctors
who recommend marijuana to sick patients.

The court also ruled that the Justice Department may not investigate doctors
merely for recommending marijuana, since this 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.

The unanimous opinion by a three-judge panel of the 9th U.S. Circuit Court
of Appeals upholds a 2-year-old court order that prohibited such federal
action before any doctors' licenses were revoked.

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.

Justice Department spokeswoman Susan Dryden said the decision was "currently
under review" and declined to say whether the government would appeal to the
U.S. Supreme Court or ask the appeals court to reconsider.

Graham Boyd, an American Civil Liberties Union attorney, said the ruling
preserves state medical marijuana laws by preventing the federal government
from silencing doctors.

"If a doctor can't recommend it, then no patient can use it," he said. "This
was the federal government's first line strategy, to shut down doctor
recommendations."

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 federal government's policy deliberately undermines the state by
incapacitating the mechanism the state has chosen for separating what is
legal from what is illegal under state law," Kozinski wrote.

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.

Alaska, Arizona, Hawaii, Maine, Nevada, Oregon and Washington followed
California in adopting 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.

Neil Flynn, a plaintiff in the case and a UC Davis doctor specializing in
AIDS treatment, said he has recommended marijuana for about three dozen of
his 1,500 patients. He said he feared government retribution for discussing
what he said were the beneficial aspects of marijuana to reduce pain, nausea
and to stimulate eating.

"I now feel comfortable in discussing it with my patients and recording it
in my chart," Flynn said.

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 one
case challenging such raids is pending before the 9th Circuit. That case,
brought by an Oakland pot club, 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.

In another federal case in San Jose, a Santa Cruz medical pot club is
seeking to have its marijuana returned after federal agents seized it.

The case decided Tuesday is Conant v. Walters, 00-17222.