COURT: DOCS CAN ADVISE POT

The federal government cannot go after doctors who recommend marijuana to
their patients, a federal appellate court ruled Tuesday.

In a unanimous decision the three-judge panel upheld an injunction barring
federal agencies from revoking the prescription-writing privileges of
doctors who discuss marijuana use with their patients. Mary Schroeder,
chief judge of the 9th U.S. Circuit Court of Appeals, said the injunction
is necessary to block federal officials from interfering with the First
Amendment rights of doctors to discuss all options with their patients.

Tuesday's ruling is very significant for Arizona, where voters here will
decide next week whether to approve Proposition 203. One provision would
permit doctors to recommend marijuana to their patients.

The decision appears to remove any legal impediment from that part of the
law taking effect if approved. The question of whether the patients will be
able to get free pot from the Department of Public Safety -- the other key
provision -- remains open.

Jeffrey Singer, a Phoenix surgeon and physician, hailed the ruling as a
crucial victory for doctors and their patients.

Singer, a long-time proponent of medical marijuana, said about a third of
his patients have cancer. He cited one woman who is being heavily medicated
with other drugs and still has pain and nausea.

"This is an ideal candidate to offer it to to see if it's going to help," he said,
an option now legally precluded. "It breaks my heart."

In 1996 Arizonans agreed to lessen the criminal penalties for those who
illegally possess marijuana.

It also permits doctors to prescribe marijuana to patients who could have
it legally. But no Arizona doctor has been willing to comply after the
federal government threatened to revoke their privileges to prescribe any drug.

This year's version of the initiative changes the language to let doctors
"recommend" marijuana, versus having to write a prescription that is
reviewable by federal authorities. That is similar to existing California
law -- the one that resulted in investigations against doctors there.

The California doctors succeeded in getting a district judge to block
investigations. Federal officials then appealed.

Schroeder said a doctor's recommendation does not, by itself, constitute
illegal conduct. So an injunction does not stop the government from
enforcing the law.

"The government policy does, however, strike at the core First Amendment
interests of doctors and patients," she wrote.

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

Schroeder rejected the government's contention that members of a regulated
profession have surrendered some of their First Amendment rights.

"The government's policy in this case seeks to punish physicians on the
basis of the content of doctor-patient communications," she said -- and
only on those discussing marijuana. More to the point, she said, it only
condemns a specific viewpoint, that marijuana would likely help a specific
patient.

"Such condemnation of particular views is especially troubling in the First
Amendment context," Schroeder wrote.

Still unclear is whether other provisions of Proposition 203 could take
effect -- particularly the part that says those with a doctor's
recommendation can get up to two ounces of pot free each month from the
Department of Public Safety.

The U.S. Supreme Court ruled last year there is no defense of "medical
necessity" that blocks someone from being prosecuted under federal law for
distributing marijuana. While some marijuana clubs continue to operate in
California without fear of prosecution by state authorities, federal
officials have closed others down.

There is, however, a separate lawsuit still pending over whether states can
enact their own drug laws and whether ill people have a constitutional
right to whatever medication is considered necessary.