Pubdate: Fri, 08 Sep 2000
Source: San Francisco Chronicle (CA)
Copyright: 2000 San Francisco Chronicle
Author: Harriet Chiang, Chronicle Legal Affairs Writer


Federal Judge Stops Threat To Pull Licenses

CALIFORNIA -- The Clinton administration suffered a defeat in its assault
on California's medical marijuana law when a judge barred the federal
government from punishing doctors who recommend the drug to their patients.

U.S. District Judge William Alsup of San Francisco ruled yesterday that
federal authorities cannot strip doctors of their license to prescribe
medicine if the physicians advise their patients to use marijuana.

The Clinton administration has fiercely attacked Proposition 215, the 1996
voter-approved initiative that allows marijuana to be prescribed for
medicinal use. The government argues that marijuana is an illegal substance
under federal drug laws.

Last month, in response to a White House request, the U.S. Supreme Court
issued an emergency ruling temporarily preventing an Oakland medicinal
marijuana club from opening for business.

In his opinion yesterday, Alsup issued a permanent injunction against the
federal government, suggesting that to allow it to punish doctors might
violate the physicians' First Amendment rights.

In California and seven other states with similar laws -- Alaska, Arizona,
Hawaii, Maine, Nevada, Oregon and Washington -- ``recommending marijuana to
treat certain debilitating illnesses is recognized as legitimate in
medically appropriate circumstances,'' the judge wrote in his 24-page

In some cases, Alsup said, ``it will be the professional opinion of doctors
that marijuana is the best therapy or at least should be tried.

``If such recommendations could not be communicated,'' he concluded, ``then
the physician-patient relationship would be seriously impaired.'' Alsup's
decision follows a 1997 ruling by U.S. District Judge Fern Smith, who
issued a preliminary injunction barring the federal government from taking
action against the doctors.

``My hope is that this ruling effectively puts an end to the fear that
physicians have been experiencing,'' said Graham Boyd, a lawyer with the
American Civil Liberties Union, which represents a statewide class of
doctors and patients suing the federal government.

Gretchen Michael, spokeswoman for the Justice Department, said officials
were not ready to comment on the opinion. ``We'll obviously review the
decision and determine what we'll do next,'' she said.

Proposition 215 allows patients to use marijuana if they have the
recommendation of a doctor. But the Clinton administration has insisted
that federal drug regulations take precedence over state laws.

A month after voters approved the measure, the Clinton administration's
drug czar, Barry McCaffrey, announced that doctors who recommend marijuana
faced losing their federal license to prescribe drugs. He also suggested
that they risk criminal prosecution and exclusion from Medicare and

In January 1997, a group of doctors and patients filed a statewide class
action, saying the federal government was violating its free speech rights.

In his decision, Alsup said it wasn't clear that the federal drug agents
intended to criminally prosecute the doctors or exclude them from Medicare
and Medi-Cal.

However, Boyd said, the decision ``puts the federal government on notice
that if they do threaten doctors, they'll be back in court and they'll

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