Newshawk: MAP - Making A Difference With Your Help
Pubdate: Thu, 10 Aug 2000
Source: Bay Area Reporter (CA)
Copyright: 2000 The Bay Area Reporter / B.A.R.
Contact: barpaper@aol.com
Address: 395 9th Street, San Francisco, CA 94103

Author: Katie Szymanski

SMOKY BATTLEGROUND RENEWED IN FEDERAL COURT

Nobody disputes the facts of what is a landmark legal case taking place in San Francisco:
some California doctors recommend medical marijuana to patients. At issue, however, is
whether what those doctors do is punishable by federal law. The federal government says
yes, while the doctors and patients in the suit - operating under California's medical marijuana
initiative Proposition 215 - say no. U.S. District Judge William Alsup will decide.

It was exactly the scenario feared when voters first passed Proposition 215 in 1996. Not
exempt from federal laws regarding illicit substances, the state may look the other way when
in the company of grass, but Uncle Sam will not, or so said the threats from the Clinton
administration four years ago. It was drug czar Barry McCaffrey who declared after the
passage of Proposition 215 that any doctors who prescribed or recommended marijuana
would lose their federal licenses to prescribe drugs, would not be eligible for
Medicare and MediCal payments, and could face criminal prosecution.

That led to Conant v. McCaffrey, a class action suit filed by Dr. Marcus Conant and others,
seeking a permanent injunction that would protect doctors from such threats and their
consequences. The plaintiffs won a preliminary injunction in 1997 that prohibited federal
officials from threatening or punishing physicians for recommending medical marijuana to
patients, because such threats squelch speech and therefore violate the First Amendment.
Last Thursday, August 3, the parties returned to federal court in San Francisco to duke it out
for the final ruling. The original preliminary injunction ruling against the government will
either be extended or withdrawn.

The class action suit, as stated by the plaintiffs' attorneys, including the American Civil
Liberties Union of Northern California, "seeks a declaration that physicians and patients have
the right, protected by the First Amendment to the U.S. Constitution, to communicate in the
context of a bona fide physician-patient relationship, without government interference or
threats of punishment, about the potential benefits and risks of the medical use of marijuana."

For the federal government, that very same free speech means that a doctor is aiding and
abetting a person in obtaining an illegal drug that has been proven "harmful." Interestingly, the
government cited the Food and Drug Administration as a source that has documented the evils
of marijuana, but plaintiff Conant worked on the FDA's report on Marinol - the
marijuana-based medicine to treat weight loss and medical pain - and that report was
favorable. Nevertheless, whether the United States can instill fear into doctor-patient
discussions is the true issue, and both sides called for a summary judgment last week since
neither disagree about the basic facts of the case.

Plaintiff Conant is a longtime Bay Area HIV/AIDS specialist. He is joined in his suit by Dr.
Debasish Tripathy, an oncologist specializing in breast cancer at the University of California at
San Francisco Mount Zion Breast Care Center; Dr. Howard D. Maccabee, medical director
of the Radiation Oncology Center in Walnut Creek; Dr. Stephen Follansbee, chief of staff at
Davies Medical Center in San Francisco and medical director of the Institute for HIV
Treatment and Research at Davies Hospital; Dr. Arnold Leff, a specialist in AIDS and
geriatric medicine; and Dr. Neil Flynn, physician at the AIDS and Related Disorders Clinic at
the University of California, Davis. Additionally, there are five patient plaintiffs who credit
medical marijuana for their survival of serious illnesses after conventional drug therapies
failed.

In addition to McCaffrey, defendants include Secretary of Health and Human Services Donna
Shalala and Attorney General Janet Reno.

The case has been renewed on the heels of a recent federal court victory for California pot
clubs whereby a United States judge ruled that potential harm to patients should have been
considered before dispensaries were targeted for closure. Pot activists around the state are
hoping that the judge in this case will follow that example.

MAP posted-by: Doc-Hawk