Federal Appeals Court Rules That U.S. Government Cannot Revoke Licenses of Doctors Recommending Marijuana to Patients

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco yesterday unanimously voted that the federal government may not investigate or revoke the licenses of physicians who recommend marijuana use to sick patients, including patients with AIDS or cancer, the Los Angeles Times reports. The ruling -- which affects medical marijuana laws in California, Alaska, Arizona, Hawaii, Nevada, Oregon and Washington, but not in states outside the 9th Circuit's jurisdiction -- upheld a 1999 U.S. District Court decision that prevented federal prosecutors from punishing doctors who told patients that smoking marijuana could be "medically beneficial." Justice Department attorneys argued that marijuana "serves no valid medical purpose" and that California's Proposition 215, which allows patients to use marijuana with a doctor's recommendation, "subvert[s]" the U.S. government's "war against drugs" (Weinstein, Los Angeles Times, 10/30). Two months following the passage of Proposition 215, government officials "threatened stiff penalties" for those doctors who discussed medical marijuana with their patients (Egelko, San Francisco Chronicle, 10/30). Chief Judge Mary Schroeder, who wrote yesterday's opinion, rejected the government's argument and said that punishing doctors who recommend medical marijuana "effectively prohibited candid discussions between doctors and patients, in violation of the First Amendment." The court panel added, however, that "prescribing" marijuana to a patient, as opposed to recommending it, would be illegal because while dispensing information is protected by the First Amendment, dispensing drugs is not (Liptak, New York Times, 10/30). Judge Alex Kozinski, who joined the ruling, cited 1999 data from the White House Office of National Drug Control Policy that said that scientific evidence existed to indicate that "marijuana-based drugs" had "potential therapeutic value" for pain relief, nausea control and appetite stimulation. Yesterday's ruling could be appealed to the complete 9th Circuit or to the U.S. Supreme Court. Justice Department spokesperson Susan Dryden said that the government was reviewing the decision.

Reaction
The court's decision, the most recent in a series of rulings "bolstering efforts in California to normalize" marijuana use for medical purposes, was hailed by American Civil Liberties Union attorney Graham Boyd as a "landmark" for doctors' free-speech rights. Boyd said, "A patient is only allowed to possess, use or grow marijuana if a doctor first recommends it. If the government can silence physicians who would recommend medical marijuana, then there is no more legal medical marijuana." The California Medical Association also welcomed the ruling, saying that the ruling "ends a gag rule where the federal government tried to chill the sacred private communications between a physician and his or her patients," according to association spokesperson Peter Warren (Los Angeles Times, 10/30). Neil Flynn, a doctor specializing in AIDS treatment and a plaintiff in the case, said he previously had "feared government retribution" for discussing marijuana as a possible treatment for nausea and pain in his AIDS patients but, following the ruling, "feel[s] comfortable" discussing it with patients and "recording" such a recommendation in medical charts (AP/Los Angeles Times, 10/29).

Arizona Implications
The court's ruling is "very significant" for Arizona, where voters on Tuesday will decide whether or not to approve Proposition 203, which would allow doctors to recommend marijuana to patients. According to the Arizona Daily Star, the ruling suggests that the measure could take effect right away if the proposition is approved. A separate aspect of the proposition, which would allow sick patients to obtain free medical marijuana from the state Department of Public Safety, "remains open," according to the Star (Fischer, Arizona Daily Star, 10/30).

Time Magazine Examines Medical Marijuana
The Nov. 4 issue of Time magazine examines the use of marijuana for medical purposes in its cover story. The article looks at marijuana's potential health benefits and health risks, as well as federal and state legislation regulating the drug's use (Cloud, Time, 11/4). The complete article is available online.