Medical Pot Use Given a Boost

The federal government may not revoke a doctor’s license to dispense medication, or investigate a physician, for recommending marijuana to sick patients, a federal appeals court in San Francisco ruled Tuesday.

The 3-0 decision by the U.S. 9th Circuit Court of Appeals is the latest in a series of rulings bolstering efforts in California to normalize the use of marijuana for medical treatment.

Three months ago, the California Supreme Court ruled unanimously that state residents who have a doctor’s approval to use marijuana for a medical purpose are protected from prosecution in state court for using or growing limited quantities of it.

The number of Californians using marijuana for medication is unknown. A few cities and counties, however, have established official registries of medical marijuana users, and in those jurisdictions alone, 30,000 patients have signed up, said Steph Scheer, a spokesman for Americans for Safe Access, an Oakland-based group that supports the use of medical marijuana.

Tuesday’s ruling affects medical marijuana laws in California and six other states -- Alaska, Arizona, Hawaii, Nevada, Oregon and Washington -- that are within the 9th Circuit’s jurisdiction. Two other states outside the circuit’s jurisdiction, Colorado and Maine, also have laws permitting marijuana use for medical purposes.

The ruling upheld a 1999 decision by U.S. District Judge William D. Alsup in San Francisco that barred federal prosecutors from taking action against doctors who tell patients, including many with AIDS and cancer, that marijuana might be medically beneficial.

The appellate ruling was described by an American Civil Liberties Union lawyer as a landmark for the free speech rights of doctors. It was also hailed by public health groups -- as well as the California Medical Assn., which filed a friend-of-the-court brief in support of the physicians who brought the suit.

For the federal government, having the power to deter doctors from recommending marijuana to patients was “the silver bullet,” said Graham Boyd, an ACLU attorney who argued for the plaintiffs. “A patient is only allowed to possess, use or grow marijuana if a doctor first recommends it. If the government can silence physicians who would recommend medical marijuana, then there is no more legal medical marijuana.”

Peter Warren, spokesman for the state medical association, said: “This is a great day for California doctors and California patients. It ends a gag rule where the federal government tried to chill the sacred private communications between a physician and his or her patients.”

Valerie Corral, one of the plaintiffs in the case who uses marijuana to alleviate symptoms of epilepsy, said the ruling “legitimizes marijuana by bringing it into a medical perspective.”

Justice Department spokesman Susan Dryden would only say the decision was under review. It could be appealed to a larger panel of 9th Circuit judges or to the U.S. Supreme Court.

The ruling evolved from passage of Proposition 215, the 1996 California initiative that permits patients to lawfully use marijuana if they have a doctor’s recommendation. Under California law, possession of small quantities of marijuana for nonmedical purposes is a misdemeanor with a maximum $100 fine.

The Clinton administration immediately acted to suppress California’s medicinal pot law, threatening to punish doctors who recommended marijuana -- by taking away their licenses to dispense drugs or potentially even jailing the physicians. The Bush administration has taken the same position.

Justice Department lawyers say pot serves no valid medical purpose and that if the California ballot measure were allowed to remain in effect, it would subvert the government’s ongoing war against drugs.

In its ruling, the 9th Circuit rejected that argument. “The government has not provided any empirical evidence to demonstrate that [the lower court injunction] interferes with or threatens to interfere with any legitimate law enforcement activities,” wrote Mary M. Schroeder, the circuit’s chief judge.

The government’s policy strikes “at core 1st Amendment interests of doctors and patients,” added Schroeder, appointed by President Carter. “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.”

Schroeder drew a clear distinction between a doctor legally recommending the use of marijuana and the illegal activity of procuring marijuana for a patient. Simply recommending marijuana “does not translate into aiding and abetting, or conspiracy,” Schroeder wrote. Government attorneys had contended that doctors were committing such crimes when recommending marijuana to patients. Judges Betty B. Fletcher, also a Carter appointee, and Alex Kozinski, a Reagan appointee, joined in the ruling.

In a lengthy concurring opinion, Kozinski said doctors who spoke candidly to patients about the potential benefits of medical marijuana “may destroy their careers and lose their livelihoods” if the government policy is implemented.

Kozinski cited declarations doctors lodged when the suit challenging the government policy was filed in 1997. The doctors described how the policy had chilled their normal consultations with patients.

“As a result of the government’s public threats, I do not feel comfortable even discussing the subject of medical marijuana with my patients,” Dr. Milton N. Estes of San Francisco said in his declaration. “I feel vulnerable to federal sanctions that could strip me of my license to prescribe the treatments my patients depend upon, or even land me behind bars.”

In 1997, plaintiffs including the Bay Area Physicians for Human Rights filed a federal suit challenging the Clinton administration’s policy. A U.S. district judge issued a preliminary injunction barring action against doctors, and Judge Alsup issued a permanent injunction in 1999.

Before the preliminary injunction was issued, federal Drug Enforcement Administration agents interrogated one doctor in Northern California and took records from his office after they learned that he had talked to a patient about using marijuana for medical purposes. The doctor said in a court declaration that he was scared, but no action was taken against him.

On Tuesday, one of the plaintiffs, Dr. Marcus Conant of San Francisco, who has been treating AIDS patients since 1981, said he was delighted with the ruling. “This has never been about legalizing marijuana. It is about the 1st Amendment right of a physician to speak candidly to his or her patient and answer questions patients may have,” Conant said.

In his opinion, Kozinski cited 1999 data from the White House Office of National Drug Control, which said there was scientific evidence indicating the potential therapeutic value of marijuana-based drugs for pain relief, control of nausea and vomiting and appetite stimulation. However, he cautioned that “the evidence supporting the medical use of marijuana does not prove that it is, in fact, beneficial. There is also much evidence to the contrary, and the federal defendants may well be right that marijuana provides no additional benefit over approved prescription drugs, while carrying a wide variety of serious risks.”

But Kozinski stressed that there is a genuine difference of expert opinion on the issue, as well as significant scientific and anecdotal evidence supporting both viewpoints.

“For the great majority of us who do not suffer from debilitating pain, or who have not watched a loved one waste away as a result of AIDS-induced anorexia ... it doesn’t much matter who has the better of this debate. But for patients suffering from [multiple sclerosis], cancer, AIDS or one of the afflictions listed in the [National Academy of Sciences study on marijuana and medicine], and their loved ones, obtaining candid and reliable information about a possible avenue of relief is of vital importance,” Kozinski wrote.

“In this case,” he emphasized, “it is perfectly clear that the harm to patients from being denied the right to receive candid medical advice is far greater than the harm to doctors from being unable to deliver such advice.”

One such patient, the judge said, is plaintiff Keith Vines, an assistant district attorney in San Francisco, whose bout with AIDS had caused him to lose more than 40 pounds. The decorated Air Force officer was “only able to recover by using cannabis to stimulate his appetite.”

Kozinski said that if the federal policy were enforced, the likely consequence is that “many patients desperate for relief from debilitating pain or nausea would self-medicate, and wind up administering the wrong dose or frequency, or use the drug where a physician would advise against it.”

If the government policy went into effect, it also would have the negative impact of deliberately undermining California’s effort to define the line between legal and illegal marijuana use, Kozinski said. Normally state law bows to federal law, but this situation falls within a long-established exception, the judge said.

Another case, stemming from related federal efforts to curb medical marijuana use, is pending before the 9th Circuit. In that case, the Oakland Cannabis Buyers Club contends that states are entitled to experiment with their own drug laws and that U.S. citizens are entitled to use marijuana to alleviate pain.