Court Backs Doctors on Marijuana

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Court Backs Doctors on Marijuana

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By DAVID KRAVETS, Associated Press Writer

SAN FRANCISCO (AP) - A federal appeals court ruled for the first time

Tuesday that the government cannot revoke doctors' prescription licenses for

recommending marijuana to sick patients.

A three-judge panel of the 9th U.S. Circuit Court of Appeals (news - web

sites) unanimously found that the Justice Department (news - web sites)'s

policy interferes with the free-speech rights of doctors and patients.

" 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 to patients, " Chief Circuit Judge Schroeder said.

The 9th Circuit upheld a 2-year-old court order prohibiting the government

from stripping doctors of their licenses to dispense medication. The policy

was blocked before any licenses were actually revoked.

The dispute is one of several cases resulting from medical marijuana laws on

the books in eight states.

The government argued that doctors were aiding and abetting criminal

activity for recommending marijuana because it is an illegal drug under

federal narcotics laws.

But the appeals court said doctors have a constitutional right to speak

candidly with their patients about marijuana without fear of government

sanctions.

The court said doctors could get in trouble only if they actually helped

patients obtain marijuana. Merely recommending the drug " does not translate

into aiding and abetting, or conspiracy, " Schroeder said.

Justice Department spokeswoman Dryden said the decision was under

review and declined to say whether the government would appeal to the U.S.

Supreme Court (news - web sites) or ask the appeals court to reconsider.

Graham Boyd, an American Civil Liberties Union (news - web sites) attorney

representing patients' rights groups and physicians, said the ruling

preserves state medical marijuana laws by preventing the federal government

from silencing doctors.

" If a doctor can't recommend it, then no patient can use it, " he said. " This

was the federal government's first line strategy, to shut down doctor

recommendations. "

The plaintiffs included Dr. Neil Flynn of the University of California at

, who said that marijuana may help some patients but that doctors have

been fearful of recommending it.

U.S. District Judge Alsup responded by prohibiting the Justice

Department from revoking Drug Enforcement Administration licenses to

dispense medication " merely because the doctor recommends medical marijuana

to a patient based on a sincere medical judgment. " Alsup's order also

prevented federal agents " from initiating any investigation solely on that

ground. "

The case was an outgrowth of a measure approved by California voters in

1996. It allows patients to use marijuana with a doctor's recommendation.

Following the measure's passage, the Clinton administration said doctors who

recommend marijuana would lose their federal licenses to prescribe medicine,

could be excluded from Medicare and Medicaid programs, and could face

criminal charges. The Bush administration continued the fight.

The other states with medical marijuana laws are Alaska, Arizona, Hawaii,

Maine, Nevada, Oregon and Washington.

Last year, the U.S. Supreme Court said clubs that sell marijuana to the sick

with a doctor's recommendation are breaking federal drug laws.

Pot clubs continue to operate, including several in San Francisco, as local

authorities look the other way. But federal officials have raided many clubs

in California, the state where they are more prevalent.

One case challenging such raids is pending before the 9th Circuit. That

case, brought by an Oakland pot club, argues that the states have the right

to experiment with their own drug laws and that Americans have a fundamental

right to marijuana as an avenue to be free of pain.