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Court Backs Doctors
Tue Oct 29, 3:48 PM ET
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
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 Mary 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.
The Justice Department had no immediate comment.
Graham Boyd, an American Civil Liberties Union attorney, had
urged the judges to preserve the sanctity of doctor-patient
interactions. "That is speech that is protected by the First
Amendment," he argued.
The case was brought by patients' rights groups and doctors
including Neil Flynn of the University of California at Davis,
who said that marijuana may help some patients but that
doctors have been fearful of recommending it.
U.S. District Judge William 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
The case was an outgrowth of a measure approved by California
voters in 1996. It allows patients to use marijuana with a
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 (news - web sites) 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.