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Newshawk: M & M Family
Pubdate: Fri, 04 Aug 2000
Source: San Jose Mercury News (CA)
Copyright: 2000 San Jose Mercury News
Contact: letters@sjmercury.com
Address: 750 Ridder Park Drive, San Jose, CA 95190
Fax: (408) 271-3792



Judge Will Decide Whether Doctors Can Prescribe Medicinal Marijuana

The American Civil Liberties Union asked a federal judge Thursday to issue a permanent
injunction to prevent the government from penalizing doctors who discuss marijuana with

The federal government, in response, reasserted its resistance to California's controversial
medicinal marijuana law -- approved by voters in 1996 and tied up in court ever since -- by
saying doctors who recommend cannabis to seriously ill patients could lose their licenses to
dispense all medicine.

``There is a national standard here. Doctors cannot use marijuana in their medical practice --
period,'' Justice Department attorney Joseph W. Lobue told a judge during arguments at
U.S. District Court in San Francisco.

The hearing could signify the last stage of a class-action lawsuit, brought by the ACLU, that
contends the federal government is stifling the free speech of physicians in an overzealous
attempt to stay in line with its ``war on drugs.''

``As part of this war, they don't want doctors talking to patients about marijuana at all,'' said
ACLU attorney Graham Boyd. ``That absolutely violates the Constitution.''

Boyd conceded he knew of no doctors targeted for criminal prosecution or hit with other
sanctions since the issue in 1997 of a preliminary injunction preventing physicians from being
targeted by the government.

But he said many doctors resist even mentioning pot for fear of losing their federal right to
prescribe medication, and that most are ``completely and utterly confused'' about the subject.

Judge William Alsup was expected to issue a decision in the next few weeks.

And so the debate over medicinal marijuana continues, four years after voters overwhelmingly
approved Proposition 215.

Also called the Compassionate Use Act, the measure allows patients with such chronic,
debilitating illnesses as AIDS and cancer -- and with a doctor's recommendation -- to grow
and use marijuana for pain relief without being prosecuted under state law. Similar measures
have passed in Alaska, Arizona, Hawaii, Maine, Nevada, Oregon and Washington state.

The first challenges to Proposition 215 were directed at cannabis clubs for medicinal
marijuana users. Clubs in Oakland, San Francisco and San Jose were closed by local
authorities, uncomfortable with their lack of regulation, intent on upholding state and federal
drug laws.

But the tide seems to be turning for pot clubs in some cities.

Peter Baez, a San Jose club operator charged in 1998 with eight felony counts, was allowed in
May to plead no contest to one misdemeanor and pay a $100 fine. And last month, a federal
judge cleared the way for the Oakland Cannabis Buyers' Cooperative to distribute marijuana.
The Justice Department has said it will appeal that ruling.

State, federal conflict

At the heart of the battle over Proposition 215 is the conflict between state law, which allows
distribution of medicinal marijuana, and federal law, which says pot has no legitimate medical

That conflict was apparent in court Thursday, as Justice Department lawyers reiterated their
argument that recommending marijuana to patients keeps drug traffickers in business and
involves a substance that is not regulated by the federal Food and Drug Administration.

Lobue likened a doctor recommending that a patient smoke marijuana to a lawyer
recommending that a defendant commit perjury.

Several years ago, White House drug policy chief Barry McCaffrey stoked the controversy
when he said doctors who recommended marijuana would lose their federal licenses to
prescribe controlled substances. He said the doctors would be excluded from Medicare and
Medicaid and could face criminal charges.

But a federal judge, describing the Clinton administration's drug policy as ``fickle'' and
``vague,'' later stayed the action until the state vs. federal policy issue is resolved.

That hasn't happened yet, but the 10 doctors and five patients for whom the ACLU filed the
class-action lawsuit are hoping to leave their mark on the debate. They say the federal
government feels threatened by popular support for marijuana and is using doctors as a tool to
effectively block the Compassionate Use Act.

Judge Alsup vigorously questioned both sides about their positions throughout Thursday's
nearly three-hour hearing. At times, he seemed to suggest the Justice Department was
splitting hairs and arguing semantics.

Alsup noted that the appeals court ruled that patients can defend themselves by saying
marijuana is medically necessary.

Judge's question

``If that's true, who's going to declare if it's a medical necessity if it's not a doctor?'' the judge
asked Lobue. ``How do you square that, holding with your position in this case that a doctor
cannot even recommend marijuana?''

Lobue responded that the doctor would have to testify that cannabis is a medical necessity,
but admitted that could put the doctor at risk for license revocation.