Fri, 11 Jul 2003 - San Francisco Chronicle (CA)
Author: Bob Egelko, Chronicle Staff Writer

Bush Escalates Marijuana War

Supreme Court Asked to Sanction Doctors Who Recommend Pot

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.