On September 9, Federal Court Judge Fern Smith issued an order awarding interim attorney's fees to the plaintiffs in a class-action suit stemming from the government's response to Proposition 215 in California. Conant v. McCaffrey, a First Amendment case, was brought by doctors in response to threats made by government officials at a December 30, 1996 press conference that the DEA would revoke the prescription license and Medicare participation of any doctor who recommends marijuana to a patient.
On April 30 of this year, after attempts to bring the parties to a settlement had failed, Judge Smith granted Plaintiffs' motion for preliminary injunction against any such actions by the government. In this week's order, Judge Smith made very clear her disdain not only for the government's position, but for the presentation of its case. The order was such a stinging rebuke of the government's position in this case that DRCNet feels compelled to quote liberally from its text in order to give our readers a sense of its content and tone.
"In its order of April 30, the court found that there are serious questions as to the constitutionality of the government's medical marijuana policy, as to whether the Controlled Substances Act (CSA) can be interpreted in a manner that would allow the Drug Enforcement Administration to revoke physicians' licenses for merely recommending marijuana, and as to whether the Medicare statute can be interpreted to allow the DEA to revoke a physician's Medicare participation for recommending marijuana."
"The government did not present any facts to support its argument based on the 'public interest' provisions. It proffered no data to indicate, for example, that a physician's recommendation of marijuana to a bona fide patient would increase drug use in the United States."
"The court disagrees with the government's contention that it was pressing a novel but credible extension of First Amendment law. Moreover...the government failed altogether to come forward with facts to justify its position as to the First Amendment, just as it did with the CSA. By threatening to prosecute physicians for ambiguously defined conduct, the government sought either to coerce citizens into abiding by a policy that is likely unconstitutional or to force citizens to face the cost and uncertainty of suing the government to enforce physicians' and patients' First Amendment rights."
"[a]t oral argument, the government could not clarify for the court the ambiguities in its position. If the government was substantially justified, at the very least it would have been able to clarify the reaches of its own policy during the litigation.... It did not proffer any factual basis to bolster its arguments or the need for its ambiguous policy, and it has not attempted to clarify that policy with anything more than semantic distinctions at any point during this litigation."
Dan Abrahamson of The Lindesmith Center, lead attorney for the Plaintiffs, told The Week Online, "This is the third time in six months that the government has been called to task for its position with regard to physicians and medical marijuana. It is difficult to imagine a clearer indication of the merits of their position than the one communicated in this order. Yet apparently, they intend to press ahead in their attempt to establish their right to destroy the careers of qualified physicians who are using their best medical judgment in an effort to help their patients to find relief."
The full decision will be going online shortly at the Lindesmith Center web site: http://www.lindesmith.org.
MEDICAL TRIBUNE EDITOR CALLS FOR MEDICAL MARIJUANA AVAILABILITY
Medical Tribune editor in chief Nicholas K. Zittell this week called for the availability of marijuana for medicinal uses, saying "Concerns over fears about potential habituation and the moral denigration of our nation's youth cloud over the fact that marijuana, in therapeutic doses, is less toxic than many chemotherapeutic agents."