ACLU of Hawaii Demands Immediate Retraction from U.S. Attorney

Affiliate: ACLU of Hawaii
June 8, 2005 12:00 am

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Doctors Still Have Constitutional Right to Recommend Medical Marijuana

HONOLULU — The American Civil Liberties Union of Hawaii (ACLU) demanded in a letter today that U.S. Attorney Ed Kubo immediately retract comments threatening to arrest doctors who recommend medical marijuana to their patients.

“The U.S. Attorney got it wrong,” said Lois Perrin, Legal Director of the ACLU of Hawaii. “Doctors have a clear right to continue to recommend medical marijuana, and that right is protected by the United States Constitution. If we have to, we will go to federal court next week to reaffirm doctors’ rights.”

Kubo made the threat based on his misguided interpretation of the U.S. Supreme Court ruling on medical marijuana in Gonzales v. Reich. The letter demands the retraction no later than Wednesday morning, June 15. If Kubo fails to publicly retract his statements and clarify that doctors continue to have the constitutional right to recommend medical marijuana, the ACLU said that it would bring suit in federal court and seek an order to protect doctors from federal arrest or prosecution for recommending medical marijuana.

The Supreme Court ruling on Monday in Gonzales v. Raich did not address any issues related to doctors’ rights to recommend medical marijuana or the First Amendment. The ruling was limited to the federal government’s power under the commerce clause of the U.S. Constitution to enforce federal marijuana laws against patients who possess or cultivate marijuana.

The ACLU’s concerns arose after the Honolulu Advertiser reported yesterday that Kubo stated that Hawaii’s medical marijuana program was “essentially dead.” Kubo claimed that he could now prosecute doctors who recommend medical marijuana in compliance with state law and that the Supreme Court’s decision in Gonzales v. Raich was “the death knell to the medical marijuana issue.”

The ACLU points out in its demand letter sent to the U.S. Attorney’s office this morning that the Ninth Circuit Court of Appeals ruled in Walters v. Conant that doctors have a clearly defined constitutional right under the First Amendment to recommend and discuss medical marijuana with patients. The U.S. Supreme Court let stand the Ninth Circuit ruling in 2004 by denying the federal government’s request for review. The national ACLU Drug Law Reform Project litigated the Conant case on behalf of about a dozen doctors and patients in California and signed today’s demand letter.

“Let there be no mistake. There is already case law affirming doctors’ rights to continue recommending medical marijuana in compliance with Hawaii’s medical marijuana program,” said Graham Boyd, Director of the ACLU Drug Law Reform Project. “The Supreme Court’s ruling in Gonzales v. Raich was limited to the narrow issue of the federal government’s power under the commerce clause, not any issues related to doctors’ rights.”

“The U.S. Attorney must act quickly to undo the damage to doctors and medical marijuana patients,” said Perrin. “He must withdraw his statements and stop spreading fear and intimidation among Hawaii doctors and the 2,600 sick and dying patients using medical marijuana legally and safely under Hawaii law.”

For information on the case, Walters v. Conant, see: /node/8759.

For additional information on Gonzales v. Raich, see: /node/16973.

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