Justices Give Doctors Right to Discuss Pot

Doctors in California and other Western states may recommend the use of marijuana to their patients without fear that they will be investigated or punished by federal authorities.

In a victory for the advocates of medical marijuana, the Supreme Court on Tuesday rejected the Bush administration’s appeal of a ruling that held doctors have a free-speech right to advise their sick patients of the benefits of marijuana.

By rejecting the appeal, the high court effectively upheld the ruling handed down by the U.S. 9th Circuit Court of Appeals. It applies to nine states in the West, including seven that have decriminalized the use of marijuana for medical purposes.

Tuesday’s decision is not an official ruling, and it does not finally resolve the clash between Washington and the states over medical marijuana. Federal officials continue to maintain that the drug is illegal and that they will prosecute those who use illicit drugs.

However, the decision clears the way for doctors to tell patients the possible benefits of medical marijuana and to give them the permission to use it.

In 1996, California voters gave sick people a right to use marijuana to relieve their pain or nausea so long as they had the “written or oral recommendation or approval of a physician.” Voters in nine states have adopted similar measures.

Under the Clinton administration, federal officials moved to shut cannabis clubs that had formed to provide marijuana to patients, and the Supreme Court upheld this assertion of federal power two years ago.

In 1997, federal authorities also threatened doctors who recommended marijuana. Since pharmaceuticals are tightly regulated by the federal government, officials said they might strip doctors of their right to prescribe medicines if they violated the no-marijuana policy.

But a group of doctors and patients went to federal court in San Francisco and challenged that threat on 1st Amendment grounds. A judge stopped the enforcement policy from taking effect, and Tuesday’s order effectively kills it.

Advocates of the state’s “compassionate use” policy on marijuana celebrated.

“The Supreme Court’s action today protects doctors and patients from government censorship of open and honest discussions in the exam room,” said Graham Boyd, director of drug policy litigation for the ACLU, who represented the physicians and patients who brought the lawsuit. “Patients deserve access to accurate information about all possible medicines from their doctors, including medical marijuana.”

Dr. Marcus Conant, an AIDS specialist in San Francisco and the lead plaintiff in the case, said the court’s action “means that I can do my job again and have real conversations with my patients about medical marijuana as part of their treatment options.” Besides California, the states most directly affected by the ruling are Alaska, Arizona, Hawaii, Nevada, Oregon and Washington. Voters in Colorado and Maine have also approved the medical use of marijuana.

Robert MacCoun, a UC Berkeley professor of law and public policy, called the decision a significant setback for the federal government’s effort to crack down on medical marijuana.

“I do see the momentum largely with the medical marijuana movement,” MacCoun said. “It wouldn’t surprise me at all if some other states that were sitting on the sidelines because of fears about getting tangled up with the federal government now move in the same direction.”

It is rare in a major case for the Supreme Court to refuse to even hear the federal government’s appeal when it loses in the lower courts. Last year, the 9th Circuit Court said doctors have a “core 1st Amendment” right “to speak frankly and openly with their patients,” a freedom that cannot infringed by the government.

But in his appeal on behalf of federal drug czar John Walters, U.S. Solicitor Gen. Theodore B. Olson argued that because drugs are subject to “tight regulation,” doctors are not free to recommend potentially dangerous substances.

It takes the votes of four of the nine justices to take up an appeal, and on Tuesday, the court announced that it was dismissing the case of Walters vs. Conant.

Backed by groups such as the California Medical Assn., the American Academy of Pain Medicine and the Society of General Internal Medicine, attorneys for Conant and six other physicians argued that the Justice Department push threatened to erode the doctor-patient relationship and ran counter to medical ethics. They suggested in legal briefs that free discourse between a doctor and patient cannot be suppressed even when it concerns illegal activity.

“Our feeling all along was that the drug war didn’t change the 1st Amendment nor the practice of medicine,” said Daniel Abrahamson, an attorney for the Drug Policy Alliance in Oakland. “It’s always been doctors, not cops, who have made medical decisions.”

Despite a string of victories for physicians in the lower courts, a chill remained that prompted many doctors to avoid the topic of medical marijuana with their patients.

“They steered a wide path around medical marijuana for fear of punishment,” Abrahamson said.

Dr. Milton Estes, another HIV-AIDS specialist who joined the legal case against the federal government, said he shied away from talking to patients about medical marijuana even though they had prevailed at each step in the case.

“Even though the attorneys assured me that as a plaintiff I had an even higher level of protection, I still felt really concerned and fearful about getting into these discussions with patients,” he said. Now, he said, “there will be much less reluctance” among physicians.

Estes said the need for cannabis has lessened for AIDS patients because of advances in life-sustaining treatments, but that it remains part of the arsenal of medicine. In particular, cannabis can help long-term survivors dealing with lingering side effects and those for whom aggressive treatment has failed.

The drug is said to help AIDS patients swept by nausea and wasting. Activists also say cannabis can offset the effects of chemotherapy, give relief to patients suffering debilitating chronic pain from spinal cord injuries, and help those with glaucoma and a variety of other illnesses.

“There really is this fear that in a very inappropriate and larger way the Justice Department is trying to get between the doctor and patient,” said Dr. Jack Lewin, chief executive officer of the California Medical Assn.

Hilary McQuie of Americans for Safe Access, a medical marijuana advocacy group, said activists have now put their hopes behind a bill in Congress that would shield states that authorize medical marijuana from the federal government’s prohibition against pot for any purpose.

Drug Enforcement Administration officials said the decision would not deter their anti-cannabis campaign in California and other states with medical marijuana laws.

“It’s going to be business as usual,” said Richard Meyer, a DEA spokesman in San Francisco. “Marijuana remains an illegal drug and our mission remains the same: to disrupt the trafficking of illegal drugs.”