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Medical Marijuana Survives Challenge

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U.S. Justices let stand a ruling saying doctors can talk to patients about

The U.S. Supreme Court refused Tuesday to let the Justice Department punish
doctors in Oregon, California and seven other states for recommending
marijuana to their ill patients.

The ruling was a setback for the Bush administration, which had sought to
punish doctors who recommend marijuana -- or even discuss the drug's
possible benefits -- by revoking their federal licenses to write
prescriptions. The justices declined to review a lower-court decision
favoring the doctors.

A ruling in favor of the federal government would have gutted the nine
states' medical marijuana laws, which allow patients to smoke pot with a
doctor's recommendation. Besides Oregon, the states are Alaska, Arizona,
California, Colorado, Hawaii, Maine, Nevada and Washington.

"This is a very conservative court," said Bruce Mirken, of the Medical
Marijuana Project, a national advocacy group. "It was handed a case that
would have allowed it to cut the heart out of all these state medical
marijuana laws. They chose not to do it, and that's historic."

Nevertheless, growing, selling or possessing marijuana remains illegal
under federal law, and federal prosecutors still can go after cultivators,
dealers and users, as they have in raids on "cannabis clubs" in California.
The Supreme Court ruled against medical marijuana clubs in 2001, declaring
there is no medical exception to the federal law against marijuana.

On Tuesday, supporters of medical marijuana were jubilant.

"It's one thing to say you're opposed to medical marijuana," said John
Sajo, director of Voter Power, an Oregon group that helps medical marijuana
patients. "But to say doctors can't even talk about it to their patients --
that would fly in the face of our Constitution, as I see it."

The justices let stand an October decision by the 9th U.S. Circuit Court of
Appeals, which held that doctors have a constitutional right to speak
candidly with their patients about marijuana. "Physicians must be able to
speak frankly and openly to patients," the 9th Circuit said.

Sajo said he hoped the ruling would make Oregon doctors less reluctant to
discuss medical marijuana with patients. Fear of federal prosecution is
"one of the reasons for the Leveque phenomenon," he said.

He was referring to Dr. Phillip Leveque, an 80-year-old osteopath whose
practice consists of examining patients who seek a doctor's signature on
their application for a medical marijuana card. Leveque estimates he has
signed more than 2,000 applications and renewals.

As the Supreme Court was making its announcement Tuesday, Leveque was
heading for his weekly clinic at an unimposing one-story brown building in
Southeast Portland. Before Voter Power moved its offices there last week,
the building housed a roofing company and a church.

Leveque sees about 80 patients a week in clinics in Portland, Eugene,
Roseburg, Grant's Pass, Medford and Ashland.

"I think it's great," Leveque said of the court ruling. He described
marijuana as "a benign and useful drug."

The Oregon Board of Medical Examiners last year fined Leveque $5,000 and
suspended his license for 90 days for signing medical marijuana
applications without examining all patients, conducting medical tests or
keeping adequate records.

Leveque said the only reason he continues to see patients is because most
doctors won't. "The negative publicity that hit me has scared the socks off
em," he said.

Oregon's Medical Marijuana Act, approved by voters in 1998, took effect in
May 1999. Under the law, a doctor must verify that a patient has a
"debilitating medical condition" such as cancer, glaucoma, AIDS or severe
pain. The patient or a designated caregiver must grow the marijuana.

More than 6,000 Oregonians, from all 36 counties, have cards allowing them
to grow and use marijuana for medical reasons. Nearly 1,100 doctors in
Oregon have signed at least one patient's application.

In their appeal, federal prosecutors argued that doctors who recommend
marijuana are interfering with the drug war and circumventing the
government's judgment that the illegal drug has no medical benefit.

Ongoing fight since 1996 The conflict began after California voters passed
the nation's first medical marijuana law in 1996. The Clinton
administration warned that doctors who recommended marijuana could lose
their federal licenses to prescribe medicine and face criminal charges.
Seven California doctors and some of their patients sued during the Clinton
administration, and the Bush administration continued the fight. The case
pitted the First Amendment free-speech rights of doctors against government
authority to discourage illegal drug use.

Some California doctors and patients, in court papers, compared doctor
information on pot to physicians' advice on "red wine to reduce the risk of
heart disease, vitamin C, acupuncture, or chicken soup." The Bush
administration argued that public health -- not free speech -- was at stake.

The only practical effect of Tuesday's decision on Oregon's medical
marijuana law, said Kevin Neely, spokesman for the Oregon Department of
Justice, is that it averts "any chance that physicians would be prohibited
from talking to patients as mandated under the law."

Conflict over assisted suicide The marijuana case differs in a significant
way from the Bush administration's attempt to use federal drug laws to
thwart Oregon's assisted-suicide law. In the case of marijuana, doctors
recommend use of the drug, which a lower court said was protected as free
speech under the First Amendment. In the case of doctor-assisted suicide,
doctors prescribe an overdose of narcotic drugs that terminally ill
patients -- who must request the lethal drugs in writing -- can use to
hasten death.

Supporters of assisted suicide have not claimed that doctors have a First
Amendment right to prescribe drugs. Rather, they say U.S. Attorney General
John Ashcroft went beyond his authority under the Controlled Substances Act
when he threatened to revoke the licenses of doctors who comply with the
Death With Dignity Act.

After Oregon challenged the Ashcroft ruling in court, a federal judge sided
with the state. The case is pending before the 9th Circuit Court of
Appeals, the same court that ruled on the marijuana case.

For more information on Oregon's medical marijuana program, call
503-731-4002, ext. 233, or check the Web site

Writer Ashbel S. Green of The Oregonian contributed to this report.

Pubdate: Thu, 16 Oct 2003
Source: Oregonian, The (Portland, OR)
Copyright: 2003 The Oregonian
Contact: letters@news.oregonian.com
Website: OregonLive.com