SAN FRANCISCO ( AP ) - A federal appeals court ruled for the first time Tuesday that the government cannot revoke doctors' prescription licences for recommending marijuana to sick patients. A three-judge panel of the 9th U.S. circuit court of appeals unanimously ruled that the Justice Department's policy interferes with the free-speech rights of doctors and patients.

"An integral component of the practice of medicine is the communication between doctor and a patient. Physicians must be able to speak frankly and openly to patients," chief circuit Judge Mary Schroeder said.

The 9th circuit upheld a two-year-old court order prohibiting the government from stripping doctors of their licences to dispense medication.

The dispute is one of several cases resulting from medical marijuana laws on the books in eight states.

Federal prosecutors argued that doctors who recommend marijuana are interfering with the drug war and going against the government's determination that marijuana has no medical benefits.

Doctors who recommend marijuana in the eight states that have medical marijuana laws "will make it easier to obtain marijuana in violation of federal law," government lawyer Michael Stern had said.

Graham Boyd, an American Civil Liberties Union lawyer, had urged the judges to preserve the sanctity of doctor-patient interactions. "That is speech that is protected by the First Amendment," he argued.

The case was brought by patients' rights groups and doctors including Neil Flynn of the University of California at Davis, who said that marijuana may help some patients but that doctors have been fearful of recommending it.

U.S. district Judge William Alsup responded by prohibiting the Justice Department from revoking Drug Enforcement Administration licences to dispense medication "merely because the doctor recommends medical marijuana to a patient based on a sincere medical judgment." Alsup's order also prevented federal agents "from initiating any investigation solely on that ground."

The case was an outgrowth of a measure approved by California voters in 1996. It allows patients to use marijuana with a doctor's recommendation.

Following the measure's passage, the Clinton administration said doctors who recommend marijuana would lose their federal licences to prescribe medicine, could be excluded from Medicare and Medicaid programs, and could face criminal charges. The Bush administration continued the fight.

Other states with medical marijuana laws include Alaska, Arizona, Hawaii, Maine, Nevada, Oregon and Washington.

Last year, the U.S. Supreme Court said clubs that sell marijuana to the sick with a doctor's recommendation are breaking federal drug laws.

Pot clubs continue to operate, including several in San Francisco, as local authorities look the other way. But federal officials have raided many clubs in California, the state where they are more prevalent.

One case challenging such raids is pending before the 9th circuit. That case, brought by an Oakland pot club, argues that the states have the right to experiment with their own drug laws and that Americans have a fundamental right to marijuana as an avenue to be free of pain.


Pubdate: Tue, 29 Oct 2002
Source: Associated Press (Wire)
Copyright: 2002 Associated Press
Author: David Kravets
Note: The court opinion is now a webpage at http://www.mapinc.org/conantvswalters.htm