The Bush administration has asked the Supreme Court to overturn a US 9th Circuit Court of Appeals ruling that bars the federal government from taking prescription licenses from doctors who recommend marijuana to patients for medical reasons. After the passage of California's medical marijuana initiative in 1996, the Office of National Drug Control Policy (the drug czar, then Gen. Barry McCaffrey) and the Drug Enforcement Administration (DEA) moved to strip licenses to write prescriptions for drugs from physicians who recommended that their patients use marijuana for medical purposes. California doctors, patients and activists filed suit to block the DEA, and the 9th Circuit agreed in an October 2002 ruling, finding that forbidding physicians from writing recommendations -- not prescriptions -- for or even discussing medical marijuana violated their First Amendment right to freedom of speech.
The Supreme Court is not bound to hear the Justice Department's appeal, but if it does so it will give the court the first opportunity to revisit the medical marijuana issue since 2001, when it ruled that federal drug laws provide no exception for medical marijuana use. Since the laws in all nine states where medical marijuana is legal (Maryland, the ninth state, retains a token fine for medical marijuana users) require some sort of physician recommendation mechanism, an adverse ruling in the Supreme Court could effectively neutralize those laws -- if no doctor will recommend for fear of losing his prescription license, no patient can meet that requirement. At the least, it would have a chilling effect on doctor-patient communication about medical marijuana. "Doctors would begin censoring their conversations with patients," said Graham Boyd, head of the American Civil Liberties Union Drug Policy Litigation Project, who successfully argued the case, Conant v. McCaffrey, in the lower courts. "Important medical information for patients who could benefit from marijuana will not be conveyed if the government prevailed, information about dosage, frequency, routes of administration," he told DRCNet.
On July 10, the Justice Department asked the Supreme Court to review the case in its next session, which begins in October. The 9th Circuit's decision barring the government from taking action against physicians who recommend medical marijuana "effectively licensed physicians to treat patients with prohibited substances" and interfered with the government's authority "to enforce the law in an area vital to the public health and safety," the Justice Department wrote in documents filed with the Supreme Court. Doctors who recommend medical marijuana are no different than those who would dispense LSD or heroin, argued Solicitor General Ted Olson.
Angel Raich of Oakland doesn't see it that way. "What about the health and safety of these patients?" said Raich, 37, who relies on medical marijuana to alleviate a litany of diagnosed maladies, including an inoperable brain tumor, wasting syndrome, seizure disorders, fibromyalgia, endometriosis, scoliosis, chronic pain disorders, sleep disorders, and a heart murmur. "If I don't medicate with marijuana every two hours, I'll lose a pound a day. If we lose this case, doctors would not stick their necks out, my doctor could lose his license. Patients like me would literally be dying," she told DRCNet. "They give me my cannabis in the hospital now. This would mean no overnight stays there, no treatments there. This would be devastating."
Dale Gieringer, head of California NORML (http://www.canorml.org), agreed that that an adverse ruling would be bad news indeed. "A bad ruling would be terrible," he told DRCNet, "it would basically end access to medical cannabis." But Gieringer doesn't see that happening. "This is pretty standard First Amendment stuff," he said, "and the Supreme Court has backed those freedoms pretty consistently, even in the flag burning case. Most attorneys I've talked to feel the government has a losing case."
Boyd, who would have to argue the case if the Supreme Court accepts it, was more circumspect. He was loathe to make predictions, he said. Still, "every judge who has looked at the case -- five judges, three Democrats, two Republicans, right across the political spectrum -- so far has rejected the government's position," Boyd conceded. "It is also notable that the government's position has drawn support from almost no one, and opposition from many, many groups."
Angel Raich is still worried. "Conant represents so much. If we don't do well with Conant, that's a signal that other medical marijuana cases will fare poorly, too. This could be very devastating," said Raich, who spent four years in a wheelchair, partially paralyzed "until cannabis came along." She would consider emigrating, she said. "I would hate to think I wouldn't be able to be safe in my own country," she said, "but I would have to leave."
It may not come to that, since the Supreme Court has not yet decided even whether to hear the government's appeal. And, Gieringer added, if the court actually upheld the government's position, it could be time for a new California initiative. "Cannabis as an over-the-counter medication -- what do you think about that?" he asked. "I think it could actually have a chance if it came to that."