POT RULING SHIELDS DOCTORS

U.S. Can't Punish Physicians Who Recommend Drug

A federal appeals court on Tuesday rejected one of the U.S. Justice
Department's primary legal assaults on medicinal marijuana laws in
California and other states, finding it is unconstitutional for federal
officials to punish doctors who recommend pot to the sick and dying.

The federal government's policy of investigating and threatening to revoke
a doctor's license for recommending medicinal marijuana violates the First
Amendment and tramples on the doctor-patient relationship, the 9th U.S.
Circuit Court of Appeals determined.

While the court's ruling does not come close to resolving the conflict
between the federal government and states that allow medicinal marijuana,
it amounted to a blistering rebuke of the Justice Department's attempt to
undercut the spread of medicinal pot laws by targeting doctors.

The ruling, which comes as the Bush administration has stepped up raids on
medicinal pot providers in California, was a life preserver to backers of
medicinal marijuana. The decision leaves intact an injunction that has
barred federal retaliation against doctors, whose recommendation is needed
for patients to use marijuana legally.

"If we lost this case, it would have been the end of medical marijuana,"
said Graham Boyd, the American Civil Liberties Union attorney who filed the
lawsuit on behalf of a group of Northern California doctors and patients.

A Justice Department spokesman said that the decision is "under review" and
declined to predict whether it will appeal to the U.S. Supreme Court.

The Bush and Clinton administrations have fought to preserve the right to
go after doctors who recommend pot to patients, prompting the ACLU to sue
in San Francisco federal court.

Reaction to ruling

Doctors and medical organizations, which strongly oppose the federal
policy, breathed a collective sigh of relief.

"Will this make some physicians feel more comfortable discussing marijuana
use with their patients? I imagine it would," said Dr. Donald Abrams, a
University of California-San Francisco professor of medicine who treats
AIDS and cancer patients and is a leading researcher on medicinal marijuana.

California and eight other states have enacted medicinal marijuana laws,
which depend on doctors' ability to evaluate patients and determine if pot
would alleviate pain from diseases such as cancer and AIDS. Without a
doctor's recommendation, patients may not be entitled to legal protections
under laws like California's Proposition 215, approved by voters in 1996 to
allow marijuana for medicinal use.

Writing separately in support of the ruling, Judge Alex Kozinski condemned
the federal government for a "backdoor attempt" to prevent states from
allowing the medicinal use of marijuana.

"Much as the federal government may prefer that California keep medical
marijuana illegal, it cannot force the state to do so," wrote Kozinski, one
of the court's most conservative members.

The 9th Circuit ruling doesn't apply in Maine but covers all the other
states that have medicinal marijuana laws, including Alaska, Arizona,
Hawaii, Nevada, Oregon and Washington.

In court papers, Bush administration lawyers have argued that a doctor's
recommendation to use pot violates federal drug laws because it is
equivalent to issuing a prescription for a banned drug and could encourage
illegal use.

Threat to doctors

When the Clinton administration first announced the policy after the
passage of Proposition 215 and a similar law in Arizona, doctors were
threatened with everything from letters to state medical boards to the
possibility of criminal prosecution. The medical community mobilized
against the policy, expressing concern that doctors would be unable to
discuss with patients the option of using marijuana.

At the same time, many doctors have taken a cautious approach. Dr. Joe
Mason, an oncologist with Kaiser Permanente in San Jose, limits his advice
to providing a generic letter prepared by Kaiser's legal department to
patients who seek marijuana from a cannabis club.

"I know it's a controversial area," he said. "If I have patients who choose
to smoke it, I certainly treat them and advise them of the consequences."

The appeals court made it clear that it doesn't believe the federal
government should interfere with whatever doctors advise on the issue,
saying the government's policy "strikes at core First Amendment interests
of doctors and patients."

Even if the 9th Circuit's decision stands, however, state medicinal
marijuana laws remain on tenuous ground because the U.S. Supreme Court has
so far held that federal drug laws trump state efforts to allow marijuana
use. The Supreme Court last year rejected an Oakland pot club's argument
that there is an exception to federal drug laws for medicinal necessity.

Federal law enforcement officials also continue to go after medicinal
marijuana providers like Valerie Corral, a plaintiff in the ACLU's case,
whose marijuana cooperative near Santa Cruz was raided last month.

The ruling was a dose of good news, she said. "The practical effect is that
physicians will feel more safe and secure in offering patients the kind of
support they need."