Pubdate: Fri, 17 Oct 2003
Source: Sun News (Myrtle Beach, SC)
Copyright: 2003 Sun Publishing Co.
Contact:  http://www.myrtlebeachonline.com/mld/sunnews/
Details: http://www.mapinc.org/media/987
Note: apparent 150 word limit on LTEs
Author: CLARENCE PAGE

Medical Marijuana

DOCTORS SHOULD BE FREE TO ADVISE USE

It was a small step for the Supreme Court, but one giant leap toward a sane 
drug policy.

I'm talking about the high court's refusal Tuesday to hear the Bush 
administration's appeal of a lower court ruling allowing doctors to 
recommend the medicinal use of marijuana to their patients.

Had the Supreme Court decided to hear the case, it would have had a golden 
opportunity to rip the innards out of laws various states have already 
passed to legalize or decriminalize the medicinal use of marijuana. 
Instead, this conservative Supreme Court wisely decided to reject the Bush 
administration's appeal of a ruling that came from the most reputedly 
liberal appeals court, the San Francisco-based 9th U.S. Circuit Court of 
Appeals.

In the case of Conant v. Walters, Dr. Marcus Conant, a San Francisco AIDS 
specialist, challenged the federal policy. He and other doctors argued 
quite reasonably that they should be as free to discuss the pros and cons 
of marijuana as they are to talk about red wine to reduce the risk of heart 
disease - or about "vitamin C, acupuncture or chicken soup."

The 9th Circuit agreed. Although doctors still can be punished if they 
actually help patients obtain the drug, at least they are free now to 
discuss the subject.

So far, eight states have laws legalizing marijuana for patients with 
physician recommendations: Alaska, California, Colorado, Hawaii, Maine, 
Nevada, Oregon and Washington.

But the sale or use of marijuana remains illegal under federal law, which 
has caused some interesting legal wranglings. Arizona, for example, passed 
a legalization law in 1996 but, unlike the others, it has not been 
enforceable because it stipulates a doctor's "prescription," which is 
regulated by federal law, instead of a "recommendation," which the Conant 
v. Walters decision freed from federal restriction.

The Supreme Court, in its wisdom, declined to be persuaded by Solicitor 
General Theodore Olson's argument that this was a law enforcement issue, 
not a free speech issue. "The provision of medical advice - whether it be 
that the patient take aspirin or vitamin C, lose or gain weight, exercise 
or rest, smoke or refrain from smoking marijuana - is not pure speech," he 
said in court papers. "It is the conduct of the practice of medicine. As 
such, it is subject to reasonable regulation."

If so, the high court does not appear to have found a compelling reason for 
"reasonable regulation" to include banning doctors from freely discussing 
marijuana among other options to which a patient might turn.

It's not hard to understand why the justices decided to err on the side of 
free speech, public health and privacy in leaving the highly personal 
matter of doctor-patient consultations to the states. Good for them.

Now they should take the next step: Get the federal government off the 
backs of state medicinal marijuana laws. Then we might avoid atrocities 
like the Ed Rosenthal case. He was convicted this year under federal law of 
growing and distributing cannabis, even though he was licensed by the city 
of Oakland to do so under California's medical marijuana statute.

The judge in his case put a gag on attempts by Rosenthal's attorney to 
inform the jury that Rosenthal's actions were legal under state law. After 
his conviction, seven jurors took the extraordinary step of publicly 
repudiating their verdict and apologizing to Rosenthal. The judge sentenced 
him to one day in jail and the lifelong title of "convicted felon."

Meanwhile, House bills to leave the medicinal marijuana issue to the states 
have pulled together sponsors as diverse as liberal Barney Frank, D-Mass., 
and libertarian Dana Rohrabacher, R-Calif. Unfortunately, the legislation 
languishes. Polls tend to show a large majority of Americans support 
allowing marijuana for medicinal use, although not necessarily for 
recreational use. But progress is held up by a vocal minority of anti-pot 
zealots who would rather treat marijuana as a matter of crime and 
punishment instead of public health. 
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MAP posted-by: Keith Brilhart