Unanimous Federal Appeals Court Rejects Government's Attempt to Punish Doctors for Recommending Medical Marijuana

October 29, 2002 12:00 am

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SAN FRANCISCO– In a resounding rejection of the government’s attempt to undermine the growing number of state medical marijuana laws, a federal appeals court today unanimously ruled that the government cannot revoke the licenses of California doctors who recommend medical marijuana to their patients.

“The appeals court resoundingly declared that doctors can now provide patients with medical advice about the use of medical marijuana without the fear of government intervention,” said Graham Boyd of the ACLU’s Drug Policy Litigation Project, who argued the case before the Ninth Circuit Court of Appeals. “The court’s decision establishes that a physician’s evaluation about the risk and benefits of medical marijuana constitutes protected speech under the First Amendment,” he added.

At issue in Conant v. Walters, No. 00-17222 (formerly Conant v. McCaffrey), is whether the government has the power to issue a gag order on physicians who recommend medical marijuana based on the broad assertion that the “public interest” outweighs any First Amendment consideration.

The court answered that question today with a resounding “no.” In a decision authored by Chief Judge Mary Schroeder, the court said that the government’s attempt to bar doctors from recommending medical marijuana “does?strike at core First Amendment interests of doctors and patients,” and that “physicians must be able to speak frankly and openly to patients.”

Today’s ruling upholds an earlier court order blocking the government from revoking doctors’ licenses.

The case arose after Proposition 215 was passed by California voters in November 1996, which makes it legal for patients to grow and possess marijuana for medical use when it is recommended by a doctor. The Clinton administration reacted by threatening to revoke the licenses of physicians who recommended medical use of marijuana.

“”Today’s ruling is especially important for patients seeking advice from their doctors,”” said co-counsel Ann Brick of the ACLU of Northern California. “”The court recognized that the government has no business using threats as a means of cutting off the free flow of information from the one source patients rely on the most: their doctors.””

Since the case was first filed in 1997, nine states have approved medical marijuana ballot initiatives or laws (Alaska, Arizona, California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington) and others are considering measures. Except for Maine and Colorado, every state comes under the jurisdiction of the appeals court, making the case virtually a test of the viability of these laws.

The national ACLU filed the initial lawsuit in January 1997, along with the ACLU of Northern California, the Lindesmith Center, a New York-based policy group, and attorneys with the San Francisco firm of Altshuler, Berzon, Nussbaum, Berzon & Rubin.

For more information on the case, including stories of the physicians and their patients, go to http://archive.aclu.org/issues/drugpolicy/cases/conant/

The appeals court decision is online by clicking here.

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