Pubdate: Sat, 12 Jul 2003
Source: Sacramento Bee (CA)
Copyright: 2003 The Sacramento Bee
Contact:  http://www.sacbee.com/
Details: http://www.mapinc.org/media/376
Author: David Whitney, Bee Washington Bureau
Bookmark: http://www.mapinc.org/find?154 (Conant vs. McCaffrey)
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

NEW U.S. ACTION AGAINST MEDICAL POT

Supreme Court Is Asked To Reverse A Ban On Investigating Doctors.

WASHINGTON -- The Bush administration has asked the U.S. Supreme Court to 
overturn an appellate decision barring federal drug agents from 
investigating California physicians who recommend that ill patients use 
marijuana to relieve suffering. If the high court decides this fall to take 
up this case, it would be the second medical marijuana decision by the 9th 
U.S. Circuit Court of Appeals to be reviewed. In the first case two years 
ago, the justices ruled that there is no exemption from federal drug laws 
for ill patients using marijuana.

The new case focuses on physicians and what they tell their patients about 
pot use within the confines of the doctor-patient relationship. In a brief 
filed this week with the high court, Solicitor General Theodore Olson said 
the 9th Circuit's decision in October protects doctors who urge patients to 
use illegal drugs. The case grew out of a 1997 class-action lawsuit filed 
by doctors and patients suffering from AIDS and cancer. They sought to stop 
the federal government from bringing administration actions against doctors 
who recommend to ill patients that marijuana might help relieve their 
suffering.

In response to voter initiatives in California and Arizona that 
decriminalized marijuana use for medical purposes, the Clinton 
administration drew up a policy that said doctors who recommend the use of 
marijuana could lose their license to prescribe medications under the 
Controlled Substances Act.

An injunction was issued in 1997 barring the federal government from taking 
any action against doctors under that policy. The ruling was expanded two 
years later to permanently bar an investigation of any doctor based on his 
recommendations of pot use.

In upholding the injunction, the 9th Circuit focused on the First Amendment 
rights of doctors.

"An integral component of the practice of medicine is the communication 
between a doctor and a patient," the 9th Circuit said. "Physicians must be 
able to speak frankly and openly to patients. ... Being a member of a 
regulated profession does not, as the government suggests, result in a 
surrender of First Amendment rights."

In his petition asking the high court to reverse the 9th Circuit, the 
solicitor general described the injunction as a "judicial intrusion" into 
the authority of the federal Drug Enforcement Administration's 
responsibility to investigate doctors who stray from the strict rules 
governing how drugs used for legitimate medical purposes are manufactured, 
dispensed and controlled.

"By ignoring the fundamental distinction between speech and conduct in the 
context of the physician-patient relationship, the 9th Circuit effectively 
licenses physicians to treat patients with prohibited substances," Olson wrote.

Olson called the injunction a "sweeping and unprecedented" restriction on 
the government's authority to even investigate possible violations of the 
law. He said, for example, that drug agents investigating activities at 
marijuana clubs where medical pot often is dispensed find "a large number 
of marijuana recommendations from particular physicians."

The DEA "needs to be able to investigate those doctors behaving 
irresponsibly," Olson said.

But Graham Boyd, an attorney with the American Civil Liberties Union's Drug 
Policy Litigation Unit, which represents the doctors and patients in the 
case, said the issue at stake is far more fundamental.

"What's at issue is the ability of doctors in California and nine other 
states to speak honestly with their patients about the issue of marijuana," 
he said.

He cited as an example a woman suffering from excruciating bouts of painful 
retching as a consequence of chemotherapy for treatment of breast cancer, 
and who has had no experience with marijuana.

If the high court were to reverse the 9th Circuit's ruling, Boyd said, when 
asked by the patient whether marijuana might help relieve her suffering the 
doctor would have to say that he is prohibited from advising her on the issue.

Even though the evidence on medical use of marijuana is still being 
studied, it would be appalling if patients cannot turn to their own doctors 
for an open discussion of the risks and benefits of medical pot use, Boyd said.

"People need to have that information from someone who knows what they are 
talking about," he said.
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MAP posted-by: Jay Bergstrom