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Medical Marijuana Wins a Court Victory
October 30, 2002
By ADAM LIPTAK
A federal appeals court in San Francisco ruled yesterday
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 United States
Court of Appeals for the Ninth Circuit, 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 if the government would appeal
yesterday'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.
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 Ninth Circuit. Rather than focusing on
doctors, federal efforts to override state medical
marijuana initiatives have generally taken the form of
raids on marijuana clubs and collectives, mostly in
California.
Yesterday'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.
"Physicians must be able to speak frankly and openly to
patients," the court said.
Quoting Justice John Paul Stevens of the Supreme Court,
Judge 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."
Judge 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.
Mr. Boyd of the A.C.L.U. said that because patients in
California and elsewhere may use medical marijuana only
with a doctor's recommendation, 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 yesterday'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."
Professor Amar also criticized another aspect of the
decision, which forbade the government to investigate
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.
Judge Kozinski, in a concurring opinion, 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."
Judge Kozinski described 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 at 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 H.I.V. 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, Mr. 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."
Mr.
Vines, who prosecuted one of the largest marijuana cases in
California history and says he opposes recreational use of
the drug, was pleased by yesterday'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."
http://www.nytimes.com/2002/10/30/national/30POT.html?ex=1036985027&ei=1&en=a035c1a1c8ddf9ec
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