Pubdate: Mon, 18 Oct 1999
Source: Arizona Daily Star (AZ)
Copyright: 1999 Pulitzer Publishing Co.
Author: Howard Fischer, Capitol Media Services 


Federal officials trumped the wishes of Arizona voters by threatening the
livelihood of any doctor who went along with a 1996 initiative allowing
them to prescribe marijuana.

Now Arizona voters may be able to turn the tables with another change in
the law. Sam Vagenas, director of The People Have Spoken, said doctors
haven't written any prescriptions for marijuana despite the 3-year-old law
because they fear the U.S. Drug Enforcement Administration will rescind
their rights to prescribe other drugs. He said that fear exists even though
Arizonans specifically voted to let doctors write prescriptions for
otherwise illegal drugs for seriously and terminally ill patients.

Arizonans haven't changed their minds since: In a statewide survey earlier
this year, 66 percent opposed revoking the licenses of doctors who
prescribe marijuana.

With that in mind, Vagenas' organization has crafted a small but
significant change in the law it helped push through in 1996.

First Amendment Protection

The original law states that doctors have to ``prescribe'' marijuana; if
approved by voters, the statutes would allow doctors to ``recommend''
marijuana to their patients.

Vagenas said there is some legal belief a doctor's ``recommendation'' to a
patient is protected by the First Amendment.

The organization also drafted another provision to get around the problem
that, prescription or otherwise, pharmacists cannot obtain or dispense
marijuana without DEA approval. The initiative would instead require state
Attorney General Janet Napolitano to make medical marijuana available to
those entitled to get it.

But Chic Older, executive director of the Arizona Medical Association,
questions whether the changes will make doctors less fearful of suggesting
marijuana to their patients.

And an attorney who has filed suit against the government on behalf of two
Arizona doctors who fear federal retribution said changing Arizona law is
not the answer. Jonathan Emord is instead asking a federal judge to block
the DEA and other federal agencies from retaliating against doctors who
follow Arizona law.

Only then, Emord said, will doctors here feel free to fully discuss medical
options with patients - including marijuana.

State vs. Federal Law

At the heart of the issue is how doctors perceive the conflict between
state and federal law.

At a news conference in Washington shortly after the 1996 election, U.S.
Attorney General Janet Reno said the DEA will review cases ``to determine
whether to revoke the (DEA) registration of any physician who recommends or
prescribes'' marijuana or other illegal drugs. Reno also warned that
doctors who follow state over federal law could be excluded from the
Medicare and Medicaid programs and face criminal prosecution.

A month later, the Office of National Drug Control Policy published a new
federal policy incorporating Reno's comments. That policy led to the lawsuit.

One of the doctors that sued is Jeffrey Singer, a Phoenix surgeon who,
according to Emord, wants to prescribe marijuana to patients who suffer
serious or terminal illness. The problem, said Emord, is that Singer fears

Singer said he is simply exercising his First Amendment rights.

``I am giving them advice in writing,'' Singer said. ``That's all a
prescription is.''

Don't Fear Punishment

He said doctors should not fear punishment for advising patients that, in
their medical judgment, their condition would be helped through the use of
marijuana - particularly if it is legal in the state where it is
prescribed. Richard Fisher, the other doctor, is a Sun City specialist in
geriatrics who, according to the lawsuit, frequently treats terminally ill
patients with malignancies and those undergoing chemotherapy ``who suffer
excruciating pain and nausea for which other palliative care is not

Emord said Fisher won't prescribe marijuana - even though allowed under
Arizona law - because he fears criminal prosecution, revocation of his
ability to write prescriptions and exclusion from the Medicare and Medicaid

Older said the Arizona Medical Association supports the ability of doctors
to do whatever is in the ``best interests'' of their patients. He noted
there is some anecdotal evidence marijuana has medical uses, particularly
in alleviating nausea caused by chemotherapy. ``If I were sick 90 percent
of the time I would want something to give me relief without fear of being
arrested,'' he said. And Older said doctors won't prescribe it for fear of
running afoul of federal law.

Jim Molesa, a spokesman for DEA, said his agency is not threatening any

He said the DEA, which regulates prescription writing, has a procedure that
allows them to prescribe marijuana or otherwise illegal drugs to patients.
No Arizona doctor has applied for such a license.

Molesa conceded a doctor who simply wants marijuana for a patient would not
get that permission. The physician would also have to show involvement ``in
a medical research project sanctioned by the American Medial Association
and other medical bodies,'' - something not required under Arizona law.

Fear Of Federal Government

Emord said no one has applied for prescription writing privileges because
of fear of the federal government. ``I don't trust the government not to
put them under federal scrutiny,'' said Emord. ``I wouldn't be surprised at
all if they put them under surveillance.''

Emord said that for the same reason changing Arizona law's wording from
``prescribe'' to ``recommend'' won't convince doctors here it is safe to
discuss marijuana with patients.

Older also questions whether changing the wording, by itself, will protect
his organization's members.

He said doctors have only one way of providing patients with controlled
substances: prescriptions. Older said doctors still will be loath to
recommend marijuana as there is no real legal or medical definition of a
``recommendation'' and whether that can be verbal or must be in writing.

The change from ``prescribe'' to ``recommend'' is only one part of the
initiative being pushed for in the November 2000 election ballot. The
measure also would reduce the penalty for possession of less than 2 ounces
of marijuana to a $500 fine.
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MAP posted-by: Richard Lake