Bush escalates marijuana war
Supreme Court asked to sanction doctors who recommend pot
Bob Egelko, Chronicle Staff Writer
Friday, July 11, 2003
©2003 San Francisco Chronicle |

URL: http://www.sfgate.com/cgi-bin/articl.../07/11/POT.TMP


The Bush administration, pressing its campaign against state medical
marijuana laws, has asked the U.S. Supreme Court to let federal authorities
punish California doctors who recommend pot to their patients.

The administration would revoke the federal prescription licenses of doctors
who tell their patients marijuana would help them, a prerequisite for
obtaining the drug under the state's voter-approved medical marijuana law.

Justice Department lawyers this week asked the high court to take up the
issue in its next term, which begins in October. The department is appealing
a ruling by an appellate court in San Francisco that said the proposed
penalties would violate the freedom of speech of both doctors and patients.

If the justices agree to review the case, it would be their first look at
medical marijuana since May 2001, when the court upheld the federal
government's authority to close down a pot dispensary in Oakland and others
in the state.

The October decision by the U.S. Court of Appeals in San Francisco
"effectively licensed physicians to treat patients with prohibited
substances" and interfered with the government's authority "to enforce the
law in an area vital to the public health and safety," Justice Department
lawyers Mark Stern and Colette Matzzie wrote in court papers.

The appeal "is a sign that this administration will do everything they can
to defeat the will of the voters of California and many other states," said
Graham Boyd, an American Civil Liberties Union lawyer for doctors, patients
and AIDS support groups who sued the federal government in 1997 over the
policy, which the Clinton administration originally introduced.

State laws would be moot

If the Supreme Court takes the case and ultimately rules in the government's
favor, Boyd said, "it would make all of the states' marijuana laws a dead
letter. . . . If a physician can't recommend marijuana, then no patient can
qualify" to use it under state law.

The federal action was in response to California voters' 1996 approval of
Proposition 215. The initiative, a trailblazer for laws in eight other
states, allows seriously ill patients to use marijuana with their doctors'
approval. Prop. 215 specified that the approval would take the form of a
recommendation rather than a formal prescription.

The federal government classifies marijuana in the same prohibited category
as heroin. Contending that the drug has no medical value, the Clinton
administration announced in January 1997 that doctors who recommended
marijuana would lose their licenses to prescribe federally regulated
narcotics. Doctors in many fields need federal licenses to remain in
practice.

The Clinton administration dropped the issue after a federal judge barred
enforcement of the policy, but the Bush administration revived the plan and
took it to the U.S. Court of Appeals in San Francisco, which ruled against
the government in October.


GIVING ADVICE RULED LEGAL
In the 3-0 appellate decision, Chief Judge Mary Schroeder said federal
authorities can prosecute doctors for helping patients acquire illegal
drugs, but not for simply giving medical advice that might let a patient
obtain marijuana.

She said the federal policy clashed not only with free speech but also with
the states' traditional authority over the practice of medicine. That issue
is central to another case now pending before the appeals court, involving
Attorney General John Ashcroft's attempt to punish doctors who prescribe
lethal drugs for patients under Oregon's assisted-suicide law.

The Justice Department's Supreme Court appeal argues that a physician's
"recommendation" under California law is the equivalent of a prescription
for illegal drugs, an action the government can forbid without violating
free speech.

Department lawyers said the federal policy would not penalize a doctor for
merely discussing marijuana with a patient -- as long as the doctor makes it
clear that the drug is illegal under federal law, that federal authorities
consider it dangerous and medically useless, and that the doctor is not
recommending it.


'WAR AGAINST PATIENTS'
News of the administration's appeal dismayed two patients who are plaintiffs
in the lawsuit.

"I wish the government would stop this war against patients and doctors,"
said Keith Vines, 53, a San Francisco assistant district attorney who lost
50 pounds and nearly died from a wasting syndrome associated with AIDS. He
credits medical marijuana with restoring his appetite and saving his life.

"Medical marijuana is keeping me with the ability to continue treatment,"
said Judith Cushner, 58, director of Laurel Hill Nursery School in San
Francisco, who is undergoing chemotherapy after suffering a relapse of
breast cancer. The government's bid for Supreme Court intervention, she
said, is "absolutely frightening."

The case is Walters vs. Conant, No. 03-40.

©2003 San Francisco Chronicle


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"If this were a dictatorship, it'd be a heck of a lot easier, just so
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---Theodore Roosevelt

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