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Archive for Wednesday, October 15, 2003

Justices give boost to medical marijuana

October 15, 2003

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— A federal appeals court ruling that bars the federal government from punishing doctors who recommend marijuana to their patients will stand, the Supreme Court announced Tuesday.

Without comment, the court refused to hear the Bush administration's challenge of a ruling last year by the U.S. Court of Appeals for the 9th Circuit that upheld a federal district court injunction blocking Washington's efforts to prevent doctors from telling patients that marijuana might help them. The federal policy violated the constitutional guarantee of free speech, the San Francisco-based 9th Circuit court ruled.

The decision came as a surprise defeat for the federal government in its battle against the "medical marijuana" movement. In his appeal petition to the court, Solicitor General Theodore Olson, using the kind of language that often persuades the justices to hear an appeal by the government, had called the 9th Circuit decision "an issue of exceptional and continuing importance" that "impairs the Executive's authority to enforce the law in an area vital to the public health and safety."

Instead, the court took a step whose immediate political and practical impact is favorable to the campaign for medical marijuana. The principal effect is to allow doctors to recommend marijuana to patients -- but not to provide it to them.

That is important because medical marijuana laws generally permit the possession of small amounts of marijuana only with some form of written authorization from a doctor, though in California an oral recommendation suffices.

"If there can be no recommendation, there can be no patients who benefit," said Graham Boyd, an American Civil Liberties Union lawyer who urged the Supreme Court to reject the government's appeal. But now doctors can make such recommendations, even in writing, without fear of federal investigation, Boyd said.

"I can do my job again and have real conversations with my patients about medical marijuana as part of their treatment options," said Marcus Conant, the San Francisco-based AIDS doctor who filed the case with the support of the ACLU.

The decision leaves intact a 2000 order by a California federal district court that barred the federal government from acting on threats to deny doctors who recommend marijuana the right to prescribe controlled substances or to participate in Medicaid and Medicare.

However, ordinary possession and distribution of marijuana remain illegal under federal and state laws in all nine states -- Alaska, Arizona, California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington -- that have medical marijuana laws on the books. Maryland recently enacted a law that permits those convicted of marijuana possession to argue for a reduced sentence based on medical need.

Though federal prosecutions of people for possession of small amounts of marijuana are rare, the threat of federal legal action against those who supply marijuana to people with a doctor's note remains. In 2001, the Supreme Court upheld a Justice Department effort to shut down an Oakland "cannabis club," ruling that there is no "medical necessity" exception to the federal ban on marijuana possession.

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