In a silent rebuke to the Bush administration, the US Supreme Court Tuesday refused to hear the federal government's appeal of a lower court decision blocking the feds from punishing doctors who recommend marijuana to their patients. While drug reform and patient advocates hailed the decision as a victory, the ruling does not make medical marijuana legal, nor does it prevent the federal government from continuing its policy of raids and arrests of medical marijuana providers. It does, however, block the Justice Department from threatening to suspend the prescription privileges of doctors who recommend medical marijuana. In so doing, it removes one tactic from the Justice Department's arsenal of techniques to harass the medical marijuana movement.
The case in question, Conant vs. Walters, originated in the Clinton administration's response to the 1996 passage of Proposition 215, which legalized medical marijuana in California under state law. Stunned by the measure's success, then drug czar Gen. Barry McCaffrey sought ingeniously to thwart the will of California voters by scaring doctors into not recommending or even discussing medical marijuana with their patients. While drafters of Prop. 215 sought to avoid conflict with federal law by not requiring a doctor's prescription, only a recommendation, McCaffrey countered that move by threatening doctors with the loss of DEA-controlled prescription privileges if they mentioned pot.
A group of California physicians and patients led by Dr. Marcus Conant filed suit against the federal government, charging that the no-talk policy violated their First Amendment right to free speech. Administrations changed as the case dragged on, but the John Ashcroft Justice Department was more than eager to carry on. After being handed a defeat by the 9th US Circuit Court of Appeals in San Francisco, the feds appealed to the Supreme Court. On Tuesday, the court in effect told them to go away.
Drug reform groups involved in the legal effort hailed the ruling, with the Marijuana Policy Project (http://www.mpp.org) calling it "an historic victory for patients and doctors." The Drug Policy Alliance (http://www.drugpolicy.org), which provided financial assistance for the court battle, characterized the decision as "a major victory."
"By deciding not to hear this case, the Supreme Court has eliminated any doubt that states have the right to protect medical marijuana patients under state law, and that physicians have the right to give patients honest advice and recommendations, whether the federal government approves or not," said MPP executive director Rob Kampia in a statement applauding the decision.
The lead plaintiff in the case, Dr. Conant, a San Francisco AIDS specialist, told the Los Angeles Times he was very pleased. "This means I can do my job again and have real conversations with my patients about medical marijuana as part of their treatment options."
Likewise, Graham Boyd of the ACLU's Drug Policy Litigation Project, who argued the case for the plaintiffs, told the Times the decision not to hear the appeal was a victory for patients and doctors alike. "The Supreme Court's action today protects doctors and patients from government censorship of open and honest discussions in the exam room," said Boyd. "Patients deserve access to accurate information about all possible medicines from their doctors, including medical marijuana."
It is rare for the Supreme Court to refuse to even hear federal government appeals of lower court decisions, but that is what it did Tuesday. The Justice Department could not get the minimum of four justices to agree to hear the case. The justices appear to have been content with the 9th Circuit Court of Appeals' ruling, which called doctors' ability "to speak frankly and openly" with patients a "core First Amendment right" that could not be infringed by the government.
In briefs submitted to the court, patient and medical groups such as the California Medical Association, the American Academy of Pain Medicine, and the Society of General Internal Medicine compared doctors recommending medical marijuana to physicians providing advice on "red wine to reduce the risk of heart disease, Vitamin C, acupuncture, or chicken soup." Revoking the prescription-writing privileges of doctors who recommended pot to patients would erode the patient-doctor relationship and ran counter to accepted medical ethics, they charged.
The Justice Department argued that the case was about the public health, not free speech. "The provision of medical advice -- whether it be that the patient take aspirin or vitamin C, lose or gain weight, exercise or rest, smoke or refrain from smoking marijuana -- is not pure speech," argued Solicitor General Ted Olsen. "It is the conduct of the practice of medicine. As such, it is subject to reasonable regulation."
But in rejecting the Justice Department's appeal, the Supreme Court made clear it wasn't buying that argument. The ruling is important because if the court had accepted the case and eventually ruled in favor of the federal government, state medical marijuana laws would have been essentially nullified -- all eight states with medical marijuana laws have some sort of medical recommendation requirement. If doctors could not recommend, patients could not legally receive their medicine. Now, however, the federal government will have to find another means of suppressing the medical marijuana movement.