Pubdate: Wed, 30 Oct 2002
Source: Buffalo News (NY)
Copyright: 2002 The Buffalo News
Contact:  http://www.buffalonews.com/
Details: http://www.mapinc.org/media/61
Author: David Kravets, Associated Press
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

COURT UPHOLDS DOCTORS' RIGHTS TO RECOMMEND MEDICAL POT

SAN FRANCISCO - A federal appeals court ruled for the first time Tuesday 
that the government cannot revoke doctors' prescription licenses for 
recommending marijuana to sick patients.

A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously 
found that the Justice Department's policy interferes with the free-speech 
rights of doctors and patients.

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

The 9th Circuit upheld a 2-year-old court order prohibiting the government 
from stripping doctors of their licenses to dispense medication. The policy 
was blocked before any licenses were actually revoked.

The dispute is one of several cases resulting from medical marijuana laws 
on the books in eight states.

The government argued that doctors were aiding and abetting criminal 
activity for recommending marijuana because it is an illegal drug under 
federal narcotics laws.

But the appeals court said doctors have a constitutional right to speak 
candidly with their patients about marijuana without fear of government 
sanctions.

The court said doctors could get in trouble only if they actually helped 
patients obtain marijuana. Merely recommending the drug "does not translate 
into aiding and abetting, or conspiracy," Schroeder said.

Justice Department spokeswoman Susan Dryden said the decision was under 
review and declined to say whether the government would appeal to the U.S. 
Supreme Court or ask the appeals court to reconsider.

Graham Boyd, an American Civil Liberties Union attorney representing 
patients' rights groups and physicians, said the ruling preserves state 
medical marijuana laws by preventing the federal government from silencing 
doctors.

"If a doctor can't recommend it, then no patient can use it," he said. 
"This was the federal government's first-line strategy, to shut down doctor 
recommendations."

The plaintiffs included Dr. Neil Flynn of the University of California at 
Davis, who said that marijuana may help some patients but that doctors have 
been fearful of recommending it.

The case was an outgrowth of a measure approved by California voters in 
1996. It allows patients to use marijuana with a doctor's recommendation.

Following the measure's passage, the Clinton administration said doctors 
who recommend marijuana would lose their federal licenses to prescribe 
medicine, could be excluded from Medicare and Medicaid programs, and could 
face criminal charges. The Bush administration continued the fight.
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