David Borden, Executive Director, [email protected], 11/1/02
This week's ruling by the federal Ninth Circuit Court of Appeals, protecting the right of physicians to discuss medical marijuana with their patients, or recommend it to them, was a breath of sanity in a drug war gone mad.
The sensible panel of judges found, simply, that frank and honest conversations between doctors and their patients are important and should not be interfered with by the government. The First amendment does, and must, protect them. And if that seems to pose a conflict with the "war on drugs," as the Clinton and Bush administrations have argued in court, so be it. The Constitution is the law, even when the immediate issue at hand is drugs.
Freedom of speech, of course, does not in general insulate the speaker from culpability if such speech occurs in the process of intentionally committing or furthering a criminal offense. One who shared information, for example, to assist in fraud, would be an accessory. A doctor who knowingly gave patients bad advice would be guilty of professional misconduct, much worse if such advice caused or were likely to cause significant harm. The crime in these cases, however, would not lie in the speech, but in deliberately harming others, the speech merely being the vehicle for carrying that out.
But somehow medical marijuana recommendations don't fit into that model. The drug czar's protestations notwithstanding, marijuana has sufficient recognition and acceptance as a medicine, that a significant number of physicians, in their sincere and informed opinion, see fit to recommend its use to some of their patients for medical purposes. Recommending it for at least certain medical purposes is not regarded by the profession as a whole as malpractice -- and the fact that the patients have to violate federal law in order to obtain and use their medical marijuana has no relevance to that. Doctors are there to practice medicine, not wage the drug war.
So implicit in the ruling, perhaps, is a recognition of the supremacy of natural rights over government legislation. People have the right to seek treatment for their maladies, and in whatever manner they most see fit. Laws against it notwithstanding, medical marijuana is intrinsically not a criminal matter, and at this boundary, at least, a court had to validate that, if indirectly.
At least that is how I read the space between the lines in the Conant v. Walters case. Though oppression waxes strong, still the truth of natural human rights shines through and cancels the corrupt laws of the drug war.