U.S. ANTI-POT MOVE BLOCKED

Court Bans Government Tactic Of Revoking Doctors' Licenses

A federal appeals court in San Francisco ruled Tuesday that the federal
government may not revoke the licenses of doctors who recommend marijuana
to their patients.

The ruling, by a three-judge panel of the 9th U.S. Circuit Court of
Appeals, is the biggest legal victory yet for voter initiatives in nine
states that legalized marijuana for medical purposes. It upholds a
five-year-old lower-court decision that blocked the government's efforts to
frustrate a 1996 initiative in California.

There was no immediate word on whether the government would appeal
Tuesday's ruling. Spokesmen for the Justice Department and the Drug
Enforcement Administration said only that the government was reviewing the
decision.

In prohibiting the government from enforcing the policy, the appeals court,
one of the most liberal in the nation, entered a complex and heated debate
at the intersection of medical science, the First Amendment rights of
doctors and patients, and federal power over the states.

"This is one of those big culture-war decisions," said Graham A. Boyd, an
American Civil Liberties Union lawyer who represented the plaintiffs.

The judges accepted every major argument offered by the plaintiffs, who are
California doctors and patients with serious illnesses.

"Physicians must be able to speak frankly and openly to patients," the
court said.

The California law, Proposition 215, allows patients to grow and possess
marijuana so long as they have a doctor's written or oral recommendation.
It says doctors may not be punished for making such a recommendation.

Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington
have similar laws; all but Maine and Colorado are in the 9th Circuit.
Federal efforts to override state medical marijuana initiatives have
generally taken the form of raids on marijuana clubs and collectives,
mostly in California.

Tuesday's decision, written by Chief Judge Mary M. Schroeder, held that the
policy effectively prohibited candid discussions between doctors and
patients, in violation of the First Amendment.

Quoting Justice John Paul Stevens of the Supreme Court, Schroeder added
that federal courts should defer to the states in "situations in which the
citizens of a state have chosen to serve as a laboratory in the trial of
novel social and economic experiments."

Schroeder was joined by Judge Betty B. Fletcher, who like her was appointed
by President Jimmy Carter, and by Judge Alex Kozinski, who was appointed by
President Ronald Reagan.

Because patients in California and elsewhere may use medical marijuana only
with a doctor's recommendation, said Boyd of the ACLU, the federal policy
could have frustrated all medical marijuana initiatives.

"This is really the central issue in medical marijuana," he said.

The appeals court held that a recommendation is not a prescription. A
doctor actually prescribing marijuana, the panel said, "would be guilty of
aiding and abetting in violation of federal law."

Dispensing information rather than drugs, the court held, is protected by
the First Amendment. The court rejected the government's argument that "a
doctor's 'recommendation' of marijuana may encourage illegal conduct by the
patient." It called the link between the prohibited speech and criminal
conduct "too attenuated."

Vikram Amar, a law professor at Hastings College of Law in San Francisco,
said that aspects of Tuesday's decision were too sweeping.

"The big flaw in the majority's First Amendment argument," he said, "is
that it doesn't acknowledge that the government has traditionally been
allowed to regulate the professions without violating the First Amendment."

Amar also criticized another aspect of the decision, which forbade the
government from investigating doctors on the basis of their recommendations.

"The idea that you can't initiate an investigation based on an invocation
of the First Amendment is bizarre," he said.

Kozinski said that doctors would have had much to lose and little to gain
by violating the government's policy.

"They may destroy their careers and lose their livelihoods," he wrote.
"Only the most foolish or committed of doctors will defy the federal
government's policy and continue to give patients candid advice about the
medical uses of marijuana."

Kozinski described at length what he called "a legitimate and growing
division of informed opinion" on the medical usefulness of marijuana.

He cited reports by the National Academy of Sciences, the Canadian
government and the British House of Lords ("a body not known for its wild
and crazy views," the judge noted), concluding that marijuana has at least
potential medical uses in controlling pain and nausea and in stimulating
the appetite.

Eugene Volokh, a law professor at the University of California, Los
Angeles, said the decision took issue with a particularly intrusive form of
federal interference with state law.

"They are really making it impossible for the state to implement its own
regulatory scheme," he said of the federal government's policy.

Keith Vines, an assistant district attorney in San Francisco, is one of the
plaintiffs. In 1993, he developed wasting syndrome, a little-understood
metabolic change associated with HIV infection that caused his weight to
drop from 195 pounds to 145 pounds.

"I was a patient facing death, desperately looking for an option," he said.

After Proposition 215 passed in 1996, Vines discussed marijuana with his
doctor. She recommended it, and he found it helped his appetite.

"It was a miracle," he said. "My weight came back."

Vines, who prosecuted one of the largest marijuana cases in California
history and says he opposes recreational use of the drug, was pleased by
Tuesday's decision.

"The decision today is of really great practical importance," he said. "The
federal government has no business telling doctors what they can and can't
say."