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Court Backs Doctors on Marijuana



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 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 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 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 (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.