Pubdate: Wed, 15 Oct 2003 Source: Washington Post (DC) Section: Page A01 Copyright: 2003 The Washington Post Company Contact: http://www.washingtonpost.com/ Details: http://www.mapinc.org/media/491 Author: Charles Lane Cited: American Civil Liberties Union http://www.aclu.org/ Bookmark: http://www.mapinc.org/topics/Conant (Walters v. Conant) Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal) U.S. APPEAL OF MARIJUANA CASE REJECTED The Supreme Court announced yesterday that it will let stand a federal appeals court ruling that bars the federal government from punishing doctors who recommend marijuana to their patients. Without comment, the court refused to hear the Bush administration's challenge of a ruling last year by the U.S. Court of Appeals for the 9th Circuit that upheld a federal district court injunction blocking Washington's efforts to prevent doctors from telling patients marijuana might help them. The federal policy violated the constitutional guarantee of free speech, the San Francisco-based 9th Circuit court ruled. The decision came as a surprise defeat for the federal government in its battle against the "medical marijuana" movement. In his appeal petition to the court, Solicitor General Theodore B. Olson, using the kind of language that often persuades the justices to hear an appeal by the government, had called the 9th Circuit decision "an issue of exceptional and continuing importance" that "impairs the Executive's authority to enforce the law in an area vital to the public health and safety." Instead, the court took a step whose immediate political and practical impact is favorable to the campaign for medical marijuana. The principal effect is to allow doctors to recommend marijuana to patients - but not to provide it to them. That is important because medical marijuana laws generally permit the possession of small amounts of marijuana only with some form of written authorization from a doctor, though in California an oral recommendation suffices. "If there can be no recommendation, there can be no patients who benefit," said Graham Boyd, an American Civil Liberties Union lawyer who urged the Supreme Court to reject the government's appeal. But now doctors can make such recommendations, even in writing, without fear of federal investigation, Boyd said. "I can do my job again and have real conversations with my patients about medical marijuana as part of their treatment options," said Marcus Conant, the San Francisco-based AIDS doctor who filed the case with the support of the ACLU. The decision leaves intact a 2000 order by a California federal district court that barred the federal government from acting on threats to deny doctors who recommend marijuana the right to prescribe controlled substances or to participate in Medicaid and Medicare. However, ordinary possession and distribution of marijuana remain illegal under federal and state laws in all nine states -- Alaska, Arizona, California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington -- that have medical marijuana laws on the books. Maryland recently enacted a law that permits those convicted of marijuana possession to argue for a reduced sentence based on medical need. Though federal prosecutions of people for possession of small amounts of marijuana are rare, the threat of federal legal action against those who supply marijuana to people with a doctor's note remains. In 2001, the Supreme Court upheld a Justice Department effort to shut down an Oakland "cannabis club," ruling that there is no "medical necessity" exception to the federal ban on marijuana possession. Advocates of medical marijuana laws say that smoking marijuana is often the only way that patients with cancer or AIDS can cope with pain or relieve nausea. But the Bush administration, like the Clinton administration before it, says that federal law still classifies marijuana as a substance with "no currently accepted medical use" and "a high potential for abuse." After voters in California and Arizona adopted medical marijuana ballot initiatives in 1996, the Clinton administration warned doctors that the Drug Enforcement Administration (DEA) would strip away the right to prescribe federally controlled medication from the prescription license of any physician found "recommending or prescribing" marijuana. Doctors who recommend marijuana could also face criminal prosecution and exclusion from Medicaid and Medicare, the statement added. The Department of Health and Human Services followed with a Feb. 27, 1997, letter to medical association leaders around the country saying that the federal government "encourage[s] physicians to talk with patients about their concerns" but that doctors "may not intentionally provide their patients with oral or written statements in order to enable them to obtain controlled substances in violation of federal law." But these policies never took effect because, in early 1997, Conant and others sued in federal district court and obtained a court order barring them. The case is Walters v. Conant, No. 03-40. - --- MAP posted-by: Beth Wehrman