Pubdate: Thu, 07 Sep 2000
Source: Associated Press
Copyright: 2000 Associated Press
Author: David Kravets, Associated Press Writer

FEDERAL JUDGE TELLS GOVERNMENT IT CANNOT PENALIZE DOCTORS FOR RECOMMENDING MARIJUANA

SAN FRANCISCO (AP) -- A federal judge Thursday told the government it
cannot penalize doctors who recommend marijuana by revoking their licenses
to dispense medication.

The order by U.S. District Court Judge William Alsup came a month after the
federal government said it would resist Proposition 215, California's
voter-approved medical marijuana law. The decision has broad implications
for several states with similar laws.

Measures similar Proposition 215, which voters approved in 1996, have
passed in Alaska, Arizona, Hawaii, Maine, Nevada, Oregon and Washington
state.

"We really cannot comment this evening," Department of Justice spokeswoman
Gretchen Michael said. "We haven't seen the judge's order yet."

Alsup wrote that the Department of Justice is permanently prohibited from
revoking licenses to dispense medication "merely because the doctor
recommends medical marijuana to a patient based on a sincere medical
judgment and from initiating any investigation solely on that ground."

Even so, the U.S. Supreme Court last week barred an Oakland marijuana club
from distributing cannabis to sick patients until it decides whether that
practice is lawful.

Pending how the court rules, a decision could close dozens of such clubs
still operating. The high court's decision does not hamper Californians,
for example, who want to grow small amounts of marijuana if they have a
doctor's recommendation to use it.

The American Civil Liberties Union, which brought the suit, contended that
the government's position violates doctors' free speech rights, and that
many doctors were resisting recommending pot for fear of losing their
federal right to prescribe medication.

"This is important because doctors and patients can feel free to discuss
marijuana as an option," said Graham Boyd, an attorney with the American
Civil Liberties Union.

Alsup wrote that his order applies even if "the physician anticipates that
the recommendation will, in turn, be used by the patient to obtain
marijuana in violation of federal law."

At a hearing before Alsup last month, Department of Justice lawyer Joseph
W. Lobue told the judge that the government doesn't care whether California
voters approved the so-called Compassionate Use Act, which allows patients
to grow and possess marijuana for medical use with a doctor's
recommendation.

"It doesn't matter what California says," Lobue argued.

Arguing that federal law applies to the country no matter how states may
have voted, Lobue said the government would take the same position "in
Oklahoma if they had that law." He said marijuana has no proven medical
benefits and that the Federal Drug Administration has not authorized
doctors to even recommend it.

Legal jockeying in California began three years ago when White House drug
policy chief Barry McCaffrey said that doctors who recommended marijuana
would lose their federal licenses to prescribe controlled substances. He
said the doctors would be excluded from Medicare and Medicaid and could
face criminal charges.

The 10 doctors and five of their patients involved in the suit say
marijuana can be beneficial to patients with AIDS, HIV, cancer, glaucoma,
and seizures or muscle spasms associated with chronic, debilitating
conditions.

The case is Conant vs. McCaffrey, C97-00139WHA.
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