COURT BACKS DOCTORS WHO TALK MARIJUANA

SAN FRANCISCO (AP)- A federal appeals court ruled for the first time
Tuesday that the government cannot revoke doctors' prescription licenses
for recommending marijuana to sick patients. A three-judge panel of the 9th
U.S. Circuit Court of Appeals unanimously found that the Justice
Department's policy interferes 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 9th Circuit upheld a 2-year-old court order prohibiting the government
from stripping doctors of their licenses to dispense medication. The policy
was blocked before any licenses were actually revoked.

The dispute is one of several cases resulting from medical marijuana laws
on the books in eight states.

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

But the appeals court said doctors have a constitutional right to speak
candidly with their patients about marijuana without fear of government
sanctions.

The court said doctors could get in trouble only if they actually helped
patients obtain marijuana. Merely recommending the drug "does not translate
into aiding and abetting, or conspiracy," Schroeder said.

Justice Department spokeswoman Susan Dryden said the decision was 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 representing
patients' rights groups and physicians, 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."

The plaintiffs included Dr. Neil Flynn of the University of California at
Davis, who said that marijuana may help some patients but that doctors have
been fearful of recommending it.

U.S. District Judge William Alsup responded by prohibiting the Justice
Department from revoking 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 a measure approved by California voters in
1996. It allows patients to use marijuana with a doctor's recommendation.

Following the measure's passage, the Clinton administration said doctors
who recommend 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 the fight.

The other states with medical marijuana laws are Alaska, Arizona, Hawaii,
Maine, Nevada, Oregon and Washington.

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, including several in San Francisco, as local
authorities look the other way. But federal officials have raided many
clubs in California, the state where they are more prevalent.

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.