[ Federal Court Opinion below ]
SAN FRANCISCO -- For the first time ever, a federal appeals court has ruled that the government cannot revoke the prescription drug licenses of doctors who recommend marijuana to sick patients.
A three-judge panel also ruled unanimously Tuesday that the Justice Department cannot investigate doctors for merely recommending marijuana to patients, upholding a 2-year-old court order that prohibited such federal action.
The 9th U.S. Circuit Court of Appeals said that such investigation would interfere 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.
Federal prosecutors argued that doctors who recommend marijuana use are interfering with the drug war and circumventing the government's judgment that the illegal drug has no medical benefit.
But the San Francisco-based court, noting that doctors are not allowed to dispense marijuana themselves, said physicians had a constitutional right to speak candidly with their patients about marijuana without fear of government sanctions.
Doctors who recommend marijuana in the eight states that have medical marijuana laws "will make it easier to obtain marijuana in violation of federal law," government attorney Michael Stern had said.
The Justice Department had no immediate comment.
In a concurring opinion, Judge Alex Kozinski wrote that there was a wealth of evidence that may support marijuana use for sick patients, and said the government attacked doctors as a means to paralyze California's medical marijuana laws.
The case was brought by patients' rights groups and doctors who said they have been fearful of recommending marijuana, even if it's in a patient's best interest.
U.S. District Judge William Alsup blocked the Justice Department from revoking doctors' 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 Proposition 215, which California voters approved in 1996. It allows patients to lawfully use marijuana with a doctor's recommendation.
Following California, Alaska, Arizona, Hawaii, Maine, Nevada, Oregon and Washington adopted laws allowing the sick to use marijuana with a doctor's recommendation.
The Clinton administration said doctors who recommended 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 Clinton's fight.
The government argued that doctors were aiding and abetting criminal activity for recommending marijuana because it's an illegal drug under federal narcotics laws.
But the appellate court said doctors could be liable only if they actually assisted patients in acquiring marijuana. Merely recommending the drug "does not translate into aiding and abetting, or conspiracy," Schroeder wrote.
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 and dole out marijuana to those with a doctor recommendation, including several in San Francisco, as local authorities look the other way. Many cities and counties issue identification cards for sick patients with a doctor's note recommending marijuana.
Federal officials have raided many marijuana clubs in California, and a case brought by an Oakland pot club challenging such raids is pending before the 9th Circuit. That case 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.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 00-17222 D.C. No. CV-97-00139-WHA OPINION
Appeal from the United States District Court for the Northern District of
California William H. Alsup, District Judge, Presiding
Argued and Submitted April 8, 2002—San Francisco, California
Filed October 29, 2002
Before: Mary M. Schroeder, Chief Judge, Betty B. Fletcher and Alex Kozinski,
Circuit Judges.
Opinion by Chief Judge Schroeder; Concurrence by Judge Kozinski
OPINION
SCHROEDER, Chief Judge:
This is an appeal from a permanent injunction entered to protect First Amendment rights. The order enjoins the federal government from either revoking a physician’s license to prescribe controlled substances or conducting an investigation of a physician that might lead to such revocation, where the basis for the government’s action is solely the physician’s professional “recommendation” of the use of medical marijuana. The district court’s order and accompanying opinion are at Conant v. McCaffrey, 2000 WL 1281174 (N.D. Cal. Sept. 7, 2000). The history of the litigation demonstrates that the injunction is not intended to limit the government’s ability to investigate doctors who aid and abet the actual distribution and possession of marijuana. 21 U.S.C. § 841(a). The government has not provided any empirical evidence to demonstrate that this injunction interferes with or threatens to interfere with any legitimate law enforcement activities. Nor is there any evidence that the similarly phrased preliminary injunction that preceded this injunction, Conant v. McCaffrey, 172 F.R.D. 681 (N.D. Cal. 1997), which the government did not appeal, interfered with law enforcement. The district court, on the other hand, explained convincingly when it entered both the earlier preliminary injunction and this permanent injunction, how the government’s professed enforcement policy threatens to interfere with expression protected by the First Amendment. We therefore affirm.
I. The Federal Marijuana Policy
The federal government promulgated its policy in 1996 in response to initiatives passed in both Arizona and California decriminalizing the use of marijuana for limited medical purposes and immunizing physicians from prosecution under state law for the “recommendation or approval” of using marijuana for medical purposes. See Cal. Health & Safety Code § 11362.5. The federal policy declared that a doctor’s “action of recommending or prescribing Schedule I controlled substances is not consistent with the ‘public interest’ (as that phrase is used in the federal Controlled Substances Act)” and that such action would lead to revocation of the physician’s registration to prescribe controlled substances.1 The policy relies on the definition of “public interest” contained in 21 U.S.C. § 823(f), which provides:
In determining the public interest, the following factors shall be considered: (1) The recommendation of the appropriate State licensing board or professional disciplinary authority. (2) The applicant’s experience in dispensing, or conducting research with respect to controlled substances. (3) The applicant’s conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances. (4) Compliance with applicable State, Federal, or local laws relating to controlled substances. (5) Such other conduct which may threaten the public health and safety.
The policy also said that the DOJ and the HHS would send a letter to practitioner associations and licensing boards informing those groups of the policy. The federal agencies sent a letter two months later to national, state, and local practitioner associations outlining the Administration’s position (“Medical Leader Letter”). The Medical Leader Letter cautioned that physicians who “intentionally provide their patients with oral or written statements in order to enable them to obtain controlled substances in violation of federal law . . . risk revocation of their DEA prescription authority.”
The policy was entitled “The Administration’s Response to the Passage of California Proposition 215 and Arizona Proposition 200” and was released on December 30, 1996, by Barry R. McCaffrey, the Director of the Office of National Drug Control Policy (“ONDCP”) at the time. The Administration’s Response was promulgated by an interagency working group that included the ONDCP; the Drug Enforcement Administration (“DEA”); the Department of Justice (“DOJ”); the Department of Health and Human Services (“HHS”); the Nuclear Regulatory Commission; and the Departments of Treasury, Defense, Transportation, and Education.
source: http://www.ce9.uscourts.gov 30oct02
Mark Leno is on the San Francisco Board of Supervisors.
Time magazine cover story. CBS network news report. Arizona's Proposition 203. DEA agents storming Santa Cruz. Suit filed in Oakland against the federal government. San Francisco's Proposition S.
Yes, friends, medical marijuana continues to grab headlines. Prior to 1937, when Congress prohibited all use of cannabis through the passage of the Marijuana Tax Act, there was no debate about the allowance or efficacy of medical marijuana. In fact, at least 27 medicines containing marijuana were legally available in this country. Many were made by pharmaceutical firms including Eli Lilly and Squibb (now Bristol-Myers Squibb). Out of concern that the proposed Marijuana Tax Act would spell the demise of its medical use, Dr. William Woodward of the American Medical Association argued against it.
Since the passage of California's Compassionate Use Act (Proposition 215) in 1996, eight other states have passed similar laws allowing for the medical use of marijuana. Locally, we have implemented Prop. 215 by establishing a Medical Cannabis Identification Card Program, administered by our Department of Public Health.
With a physician's letter of recommendation, nearly 4,000 San Franciscans have applied for and received their ID cards. These are individuals who depend upon safe and reliable access to cannabis to deal with the serious effects of HIV/AIDS, cancer, chronic pain, anorexia, multiple sclerosis and epilepsy. Our county program recognizes these patients' medical need as our state law allows for their medical use of cannabis.
Unfortunately, our federal government, through the Drug Enforcement Agency, has decided to stand between our most vulnerable, ill citizens and their physician-recommended medicine by shutting down cannabis clubs and arresting activists attempting to comply with our voter-approved law. It is interesting to note that national polls consistently reveal that at least 70 percent of Americans disapprove of the DEA's actions as they support the medical use of cannabis.
If the federal government continues to assault, intimidate and close our community-based cannabis clubs, leaving many unable to access their medicine, I believe that we must have an alternative distribution network prepared to serve their needs. That is why I have authored Proposition S on Tuesday's ballot. It asks voters if, in light of the DEA's continued policy, we should explore creating a program whereby the city of San Francisco grows and distributes cannabis so that patients can exercise their rights under Proposition 215.
Local communities know all too well the often misguided efforts of federal lawmakers. Curiously, it is usually conservative administrations that argue in favor of states' rights and for less governmental interference in our lives. But here's an issue both the left and the right can embrace: For the very same reasons government should stay out of our bedrooms, it should also stay out of our medicine cabinets.
Please join me in supporting Proposition S.
A federal appeals court said Tuesday the federal government cannot punish California doctors who recommend marijuana to their patients.
The ruling by the three-judge panel of the Ninth U.S. Circuit Court of Appeals in San Francisco was a rare legal victory for medical marijuana advocates and was hailed as a significant step toward preserving California's landmark medical marijuana law, which has been continually challenged by the U. S. Justice Department since its adoption in 1996.
Seeking sanctions against doctors who advise the use of marijuana, a federal policy pursued by both the Clinton and Bush administrations, violates the freedom of speech of both doctors and patients, the judges said.
"An integral component of the practice of medicine is the communication between a doctor and a patient," said Chief Judge Mary Schroeder. "Physicians must be able to speak frankly and openly to patients."
Tuesday's 3-0 ruling upheld lower-court injunctions that have been in effect since shortly after California voters passed Proposition 215, the state's medical marijuana law in 1996.
"If you eliminate the doctors' recommendations, you've eliminated Proposition 215," said Graham Boyd, an American Civil Liberties Union lawyer for doctors and patients who challenged the federal policy. "If federal policy here stood, that would be the end of the ability of people to legally use medical marijuana."
The Justice Department, which said it was reviewing the decision, could appeal to the U.S. Supreme Court.
Tuesday's ruling stems from a conflict between Proposition 215 and federal law. The Justice Department insists that marijuana has no medicinal value and that California's law, if allowed to remain intact, would sabotage the government's effort to fight illicit drugs.
THREAT OF PENALTIES
Just two months after Proposition 215 passed, drug officials in the Clinton administration threatened stiff penalties for physicians who told patients with cancer, AIDS or other diseases that marijuana might help them.
They threatened to revoke the doctors' licenses to prescribe federally regulated narcotics -- vital to many medical practices -- and disqualify them from the Medicare program.
The Clinton administration dropped the issue after a federal judge issued a preliminary injunction protecting doctors who recommended marijuana as long as they didn't help patients obtain it.
But after U.S. District Judge William Alsup, newly assigned to the case, issued a permanent injunction in 2000, the Bush administration took it to the appeals court.
The ruling affects seven states with medical marijuana laws: California, Alaska, Arizona, Hawaii, Nevada, Oregon and Washington.
One member of the appellate panel said Tuesday the federal government's targeting of California doctors trampled on the state's authority to make its own laws.
By cutting off medical recommendations that could legalize patients' conduct under Proposition 215, "the federal government is forcing the state to keep medical marijuana illegal," said Judge Alex Kozinski. He said the federal government can enforce its own anti-drug laws but can't make a state change its laws.
Kozinski's opinion, which was not joined by the other two panel members, ventured into another area where no federal appellate judge had gone before: the debate on the medical usefulness of marijuana.
Though the evidence isn't conclusive, Kozinski said, the histories of patients in federally approved experiments, backed by numerous studies, "provide compelling support for the view that medical marijuana can make the difference between a relatively normal life and a life marred by suffering."
MEDICAL ADVICE PROTECTED
Writing for the entire panel, Schroeder said the government can prosecute doctors for actively helping patients acquire illegal drugs, but not for giving good-faith medical advice that might enable a patient to obtain marijuana independently.
"The government's policy . . . leaves doctors and patients no security for free discussion," she said.
She also said the ruling "is consistent with principles of federalism that have left states as the primary regulators of professional conduct" -- in other words, that states, not the federal government, regulate the practice of medicine.
A doctor and two patients who took part in the suit were relieved by the appellate court's ruling.
The government's threats were "extremely intimidating," said Dr. Milton Estes, director of the Tom Steel Clinic for HIV patients in Mill Valley and chief of AIDS care in San Francisco jails. "You can't really practice medicine" without the federal licenses.
After federal courts intervened, Estes said, doctors were again able to "walk the tightrope, not being part of furnishing marijuana, but . . . talking about the risks and benefits."
"There were many doctors who, for fear of losing their livelihood, stopped having discussions about marijuana," said another plaintiff, Keith Vines, a San Francisco deputy 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.
Judith Cushner, director of Laurel Hill Nursery School in San Francisco, said medical marijuana allowed her to endure severe nausea from chemotherapy after a 1989 breast cancer diagnosis, and gave her the will to start renewed therapy after a diagnosis of endometrial cancer last December.
When the federal government threatened doctors in late 1996, "I felt frightened . . . the anxiety of thinking you might talk to a doctor who doesn't feel free to be responsive," said Cushner, 57.
"I'm not trying to be overly dramatic, but without (marijuana) there's a good chance I wouldn't have continued treatment (this year) and it likely would have taken my life."
SAN FRANCISCO -- A federal appeals court ruled for the first time Tuesday that the government cannot revoke the prescription drug licenses of doctors who recommend marijuana to sick patients.
The court also ruled that the Justice Department may not investigate doctors merely for recommending marijuana, since this would interfere 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 unanimous opinion by a three-judge panel of the 9th U.S. Circuit Court of Appeals upholds a 2-year-old court order that prohibited such federal action before any doctors' licenses were revoked.
Federal prosecutors argued that doctors who recommend marijuana use are interfering with the drug war and circumventing the government's judgment that the illegal drug has no medical benefit.
But the San Francisco-based court, noting that doctors are not allowed to dispense marijuana themselves, said physicians had a constitutional right to speek candidly with their patients about marijuana without fear of government sanctions.
Doctors who recommend marijuana in the eight states that have medical marijuana laws "will make it easier to obtain marijuana in violation of federal law," government attorney Michael Stern had said.
States allowing medical marijuana are Alaska, Arizona, California, Hawaii, Maine, Nevada, Oregon and Washington. All but Maine fall under the 9th Circuit jurisdiction.
Justice Department spokeswoman Susan Dryden said the decision was "currently under review" and declined to say whether the government would appeal to the U.S. Supreme Court or ask the 9th Circuit to reconsider.
Graham Boyd, an American Civil Liberties Union attorney, 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."
In a concurring opinion, Judge Alex Kozinski wrote that there was a wealth of evidence that may support marijuana use for sick patients, and said the government attacked doctors as a means to paralyze California's medical marijuana laws.
"The federal government's policy deliberately undermines the state by incapacitating the mechanism the state has chosen for separating what is legal from what is illegal under state law," Kozinski wrote.
The case was brought by patients' rights groups and doctors who said they have been fearful of recommending marijuana, even if it's in a patient's best interest.
U.S. District Judge William Alsup blocked the Justice Department from revoking doctors' 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 Proposition 215, which California voters approved in 1996. It allows patients to lawfully use marijuana with a doctor's recommendation. The other seven states also allow the sick to use marijuana with a doctor's recommendation.
The Clinton administration said doctors who recommended 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 Clinton's fight.
The government argued that doctors were aiding and abetting criminal activity for recommending marijuana because it's an illegal drug under federal narcotics laws.
But the appellate court said doctors could be liable only if they actually assisted patients in acquiring marijuana. Merely recommending the drug "does not translate into aiding and abetting, or conspiracy," Schroeder wrote.
Neil Flynn, a plaintiff in the case and a University of California at Davis doctor specializing in AIDS treatment, said he has recommended marijuana for about three dozen of his 1,500 patients. He said he feared government retribution for discussing what he said were the beneficial aspects of marijuana to reduce pain, nausea and to stimulate eating.
"I now feel comfortable in discussing it with my patients and recording it in my chart," Flynn said.
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 and dole out marijuana to those with a doctor recommendation, including several in San Francisco, as local authorities look the other way. Many cities and counties issue identification cards for sick patients with a doctor's note recommending marijuana.
Federal officials have raided many marijuana clubs in California, and 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.
In another federal case in San Jose, a Santa Cruz medical pot club is seeking to have its marijuana returned after federal agents seized it.
The case decided Tuesday is Conant v. Walters, 00-17222.
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