A three-member panel of the US 9th Circuit Court of Appeals in San Francisco ruled Wednesday that the federal government may not revoke the licenses of doctors who recommend marijuana to their patients. The ruling in Conant v. Walters (originally Conant v. McCaffrey) slaps down a five-year effort by the Justice Department to strangle California's medical marijuana law by intimidating physicians into not providing required recommendations. It is also a morale-booster for a medical marijuana movement in California that has been battered by adverse Supreme Court decisions and numerous DEA raids on cultivators and providers.
"This is really quite a victory," said Valerie Corral, founder of the recently raided Wo/Men's Alliance for Medical Marijuana (http://www.wamm.org) in Santa Cruz and one of the plaintiffs in the suit. "It's wonderful, especially in this time of an aggressive, mean-spirited administration," she told DRCNet.
Justice Department attorneys had argued that allowing doctors to recommend medical marijuana in states where it is legal would harm the war on drugs, but the appeals court judges weren't buying. Instead, they held that the policy effectively barred discussions between doctors and patients about the utility of marijuana as a medical treatment, in violation of the First Amendment. "The government policy does... strike at core First Amendment interests of doctors and patients," wrote Chief Judge Mary Schroeder in a unanimous opinion. "An integral component of the practice of medicine is the communication between a doctor and a patient. Physicians must be able to speak frankly and openly to patients."
Just to be perfectly clear, the court also cited a Supreme Court opinion in another case testing the limits of free speech in the medical profession. "If the First Amendment means anything, it means that regulating speech must be a last -- not a first -- resort," the Supreme Court held in Thomas v. Western States Medical Association. "Yet here it seems to be the first strategy the government sought to try."
That was precisely what then drug czar Barry McCaffrey and the Clinton administration did in the waning days of 1996, after California voters blindsided them by approving Proposition 215, the state's medical marijuana act. In a series of fevered meetings after the election, the Department of Justice and the Department of Health and Human Services sought to block implementation of the act by threatening to revoke physicians' licenses to prescribe controlled substances if they recommended marijuana to patients. That policy, laid out in "The Administration's Response to the Passage of California's Proposition 215 and Arizona's Proposition 200," was announced on December 30, 1996 -- barely seven weeks after the voters spoke.
In upholding the permanent injunction barring the government from implementing the McCaffrey policy (later enthusiastically embraced by the Bush administration), the 9th Circuit also hinted at a certain sympathy for states' rights. The decision is "consistent with principles of federalism that have left the states as primary regulators of professional conduct," wrote Judge Schroeder. Then, quoting Supreme Court Justice John Paul Stevens, she added that the federal courts should take care not to interfere in "situations in which the citizens of a state have chosen to serve as a laboratory in the trial of novel social and economic experiments."
As if the First Amendment and federalism arguments weren't enough, Judge Alex Kozinski, in a concurring opinion, presented what amounts to a brief for the acceptance of marijuana's utility in alleviating some medical conditions. Kozinski cited the federal government-commissioned 1999 Institute of Medicine Report, last month's Canadian Senate panel report, and a study done by the British House of Lords -- "a body not known for its wild and crazy views," he noted. As a result of his review of those studies, Kozinski found that "a surprising number of health care professionals and organizations have concluded that the use of marijuana may be appropriate" for some patients.
Dan Abrahamson of Drug Policy Alliance (http://www.drugpolicy.org) was one of the attorneys working on the case with lead counsel Graham Boyd of the American Civil Liberties Union Drug Litigation Project. "This is an excellent decision," he told DRCNet. "Doctors anywhere in the US are now free to recommend marijuana to their patients, and their patients have the right to ask them to do so. This will mean real benefits for patients in states that have passed medical marijuana laws, and it gives a green light to states that may be considering passing such laws," he said. "Now they are free to pass such laws without this sort of federal interference."
Abrahamson saw the ruling as a victory for both the First Amendment and federalism. "The First Amendment issue at the heart of this case was very straightforward, and the court got it right -- in a unanimous opinion," he said. "But this case also really empowers other states to assert their rights to enact new laws that advance not only medical marijuana but any other drug reform measure with which the federal government happens to disagree. This is a huge win for states' rights," he said.
For Corral, the impact is more immediate. "Physicians have been nervous about recommending marijuana because of the federal threat, and after the Supreme Court decision in the Oakland Co-op case, which much of the media misreported, many doctors were terrified," she explained. "Now physicians will have some sense of comfort about writing recommendations for patients with serious illnesses. This is extremely important."
Even California Attorney General Bill Lockyer, whose entreaties to DEA head Asa Hutchinson and drug czar John Walters to reach some sort of accommodation on medical marijuana have been ignored, took heart in the ruling. "This ruling represents an important first step in reconciling state and federal marijuana law," said Lockyer spokesperson Hallye Jordan in a mid-week press release. "It goes a long way in upholding the intent of California voters, who enacted a compassionate use law to allow physicians to recommend the treatment they feel is best for their sick and dying patients."
The Justice Department has not yet indicated whether it will appeal the ruling, but Abrahamson declared himself unworried at the prospect. "Based on the behavior of the Ashcroft Justice Department, my guess is that they will fight to the bitter end. But I think it unlikely that either the full 9th Circuit or the Supreme Court will overturn this case."
Click here to read the full ruling of the 9th Circuit panel online.