Judge Pointedly Questions Bush Policy on Medical Pot
Why is federal government into this, he asks
Bob Egelko, Chronicle Staff Writer
Tuesday, April 9, 2002
©2002 San Francisco Chronicle
A federal appeals court was openly skeptical yesterday about the federal government's attempt to punish California doctors who recommend marijuana to their patients.
"Why is the federal government getting into this?" asked Judge Alex Kozinski, historically the most conservative of the three judges on the U.S. Court of Appeals panel. "Why on earth does an administration that's committed to the concept of federalism . . . want to go to this length to put doctors in jail for doing something that's perfectly legal under state law?"
The Bush administration is trying to revive sanctions proposed in 1996 under President Bill Clinton after California voters approved Proposition 215, which legalized marijuana for patients whose doctors recommended the drug for medical purposes. Noting that marijuana remains illegal under federal law, Clinton's chief drug warrior said doctors who recommended it faced loss of their federal licenses to prescribe controlled substances -- vital to many medical practices -- and could face criminal prosecution.
The federal proposal was quickly blocked by a court order and permanently barred in September 2000 by U.S. District Judge William Alsup of San Francisco,
who said punishing doctors for giving medical advice violates freedom of speech. Yesterday, a Justice Department lawyer asked the court to overrule Alsup.
Attorney Mark Stern said the government should be allowed to investigate a doctor whose advice "will make it easier to obtain marijuana" -- just as it would investigate a doctor who recommended heroin.
Stern said the government "is not interested in suppressing the content of doctor-patient dialogue" and would allow physicians to discuss the risks and benefits of marijuana as long as they didn't recommend it. But his attempt to define the difference failed to satisfy either Kozinski or liberal Judge Betty Fletcher, who said it sounded too vague.
Kozinski said a doctor's recommendation that a patient use marijuana would have no effect on the enforcement of federal law.
The ruling, not expected for several months, would also affect medical marijuana laws in Alaska, Arizona, Hawaii, Nevada, Oregon and Washington, also governed by the San Francisco appeals court. Colorado and Maine, which have similar laws, are in other judicial circuits.
The San Francisco court rebuffed the federal campaign against Propostion 215 in an earlier case, ruling in 2000 that an Oakland cooperative would not risk federal prosecution if it distributed marijuana to seriously ill patients who had a medical need for the drug and no legal alternative. But the Supreme Court disagreed last year and said the federal drug law did not contain a "medical necessity" exemption.
At yesterday's hearing, Chief Judge Mary Schroeder suggested returning the physicians' case to Alsup for reconsideration in light of the Supreme Court ruling, which came after Alsup's injunction. But American Civil Liberties Union lawyer Graham Boyd said Alsup had specified in his decision that it would be unaffected by the then-pending Supreme Court case.
"When a doctor makes a medical diagnosis, it's protected by freedom of speech. . . . We need to get honest, uncensored advice from our physicians," said Boyd, who represents a group of AIDS and cancer physicians and patients.
In a separate case yesterday, the same panel heard a challenge by hemp manufacturers and distributors to the Bush administration's attempt to ban hemp-containing food products, a growing staple of natural food stores.
The Drug Enforcement Administration announced rules last October, without advance public notice, that would put a wide variety of food products containing hemp into the same prohibited category as heroin and marijuana because hemp seeds and oil contain minute amounts of THC, the active ingredient in marijuana. The rules were blocked by the appeals court last month while it considered the case.
The suit challenges only the issuance of the rules without public notice and comment, and could be overtaken by events. The DEA has issued the same rules on a parallel track, received public comments, and could announce a final version within months -- an action likely to prompt another court challenge.
E-mail Bob Egelko at [email protected]
©2002 San Francisco Chronicle Page A - 14
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