Unfettered Medical Advice

The U.S. Supreme Court pulled a shocker Tuesday when it let stand a controversial appeals court ruling that effectively lifts the federal threat against doctors who recommend marijuana in states where the practice is legal. The high court’s decision not to accept an appeal of the U.S. 9th Circuit Court of Appeals’ ruling is an important victory for the 1st Amendment free speech rights of doctors, whom the Justice Department had threatened to punish for speaking about, much less prescribing, marijuana.

Though the decision itself is a surprise, it is hard to imagine how Congress or the executive branch could have any constitutional right to dictate the advice that physicians give their patients.

The medical marijuana battle stems from the fact that the Drug Enforcement Administration still nonsensically lists marijuana as a Schedule I controlled substance having no “accepted medical use.” Legally, it is on a par with heroin and crack cocaine.

Tuesday’s ruling, even if it fails to budge the DEA on the Schedule I classification, should end the Bush administration’s intimidation campaign. That includes threats to yank federal prescription privileges from doctors recommending marijuana in the nine states that allow the practice.

Ideally, the ruling would prompt the administration to respect Proposition 215, the measure passed by California voters in 1996 allowing limited medical use of marijuana, for instance in quelling nausea from chemotherapy and in helping AIDS patients regain appetite. However, the DEA could also decide that because the court has undermined its ability to prosecute doctors, it should escalate its crackdowns on cannabis clubs, the chief suppliers of medical marijuana. Earlier this year, DEA officials closed several clubs in California, raided some growers and arrested activists.

It is reasonable for federal law enforcement officials to worry that medical legalization could lead the public to see marijuana as safe. Polls show that some teenagers are unaware that driving while stoned can seriously impair their abilities behind the wheel, and many Americans don’t realize that marijuana smoke contains carcinogens.

If the DEA honestly wants to rein in casual use, it should help California enforce the terms of Proposition 215 by monitoring cannabis clubs and cracking down on any that allow recreational use. Though Proposition 215 was not as tightly worded as this editorial page would have liked, the measure by no means sanctions nonmedical uses. If the administration has ideas about how to tighten implementation of Proposition 215, it should be working with rather than against California law enforcement agencies.