9TH CIRCUIT MOVES TO PROTECT DOCS WHO RECOMMEND MEDICAL MARIJUANA

SAN FRANCISCO (AP) -- 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 speek
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.

States allowing
medical marijuana are Alaska, Arizona, California, Hawaii, Maine, Nevada,
Oregon and Washington. All but Maine fall under the 9th Circuit
jurisdiction.

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 9th Circuit 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.

The other seven states also allow 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
University of California at 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.