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WASHINGTON -- The Bush administration has asked the U.S. Supreme Court to
overturn an appellate decision barring federal drug agents from
investigating California physicians who recommend that ill patients use
marijuana to relieve suffering. If the high court decides this fall to take
up this case, it would be the second medical marijuana decision by the 9th
U.S. Circuit Court of Appeals to be reviewed. In the first case two years
ago, the justices ruled that there is no exemption from federal drug laws
for ill patients using marijuana.

The new case focuses on physicians and what they tell their patients about
pot use within the confines of the doctor-patient relationship. In a brief
filed this week with the high court, Solicitor General Theodore Olson said
the 9th Circuit's decision in October protects doctors who urge patients to
use illegal drugs. The case grew out of a 1997 class-action lawsuit filed
by doctors and patients suffering from AIDS and cancer. They sought to stop
the federal government from bringing administration actions against doctors
who recommend to ill patients that marijuana might help relieve their

In response to voter initiatives in California and Arizona that
decriminalized marijuana use for medical purposes, the Clinton
administration drew up a policy that said doctors who recommend the use of
marijuana could lose their license to prescribe medications under the
Controlled Substances Act.

An injunction was issued in 1997 barring the federal government from taking
any action against doctors under that policy. The ruling was expanded two
years later to permanently bar an investigation of any doctor based on his
recommendations of pot use.

In upholding the injunction, the 9th Circuit focused on the First Amendment
rights of doctors.

"An integral component of the practice of medicine is the communication
between a doctor and a patient," the 9th Circuit said. "Physicians must be
able to speak frankly and openly to patients. ... Being a member of a
regulated profession does not, as the government suggests, result in a
surrender of First Amendment rights."

In his petition asking the high court to reverse the 9th Circuit, the
solicitor general described the injunction as a "judicial intrusion" into
the authority of the federal Drug Enforcement Administration's
responsibility to investigate doctors who stray from the strict rules
governing how drugs used for legitimate medical purposes are manufactured,
dispensed and controlled.

"By ignoring the fundamental distinction between speech and conduct in the
context of the physician-patient relationship, the 9th Circuit effectively
licenses physicians to treat patients with prohibited substances," Olson wrote.

Olson called the injunction a "sweeping and unprecedented" restriction on
the government's authority to even investigate possible violations of the
law. He said, for example, that drug agents investigating activities at
marijuana clubs where medical pot often is dispensed find "a large number
of marijuana recommendations from particular physicians."

The DEA "needs to be able to investigate those doctors behaving
irresponsibly," Olson said.

But Graham Boyd, an attorney with the American Civil Liberties Union's Drug
Policy Litigation Unit, which represents the doctors and patients in the
case, said the issue at stake is far more fundamental.

"What's at issue is the ability of doctors in California and nine other
states to speak honestly with their patients about the issue of marijuana,"
he said.

He cited as an example a woman suffering from excruciating bouts of painful
retching as a consequence of chemotherapy for treatment of breast cancer,
and who has had no experience with marijuana.

If the high court were to reverse the 9th Circuit's ruling, Boyd said, when
asked by the patient whether marijuana might help relieve her suffering the
doctor would have to say that he is prohibited from advising her on the issue.

Even though the evidence on medical use of marijuana is still being
studied, it would be appalling if patients cannot turn to their own doctors
for an open discussion of the risks and benefits of medical pot use, Boyd said.

"People need to have that information from someone who knows what they are
talking about," he said.

Pubdate: Sat, 12 Jul 2003
Source: Sacramento Bee (CA)
Webpage: http://www.sacbee.com/content/politics/story/7017331p-7965817c.html
Copyright: 2003 The Sacramento Bee
Contact: opinion@sacbee.com
Website: Northern California Breaking News, Sports & Crime | The Sacramento Bee
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