cannabisnews.com: Decision To Prosecute Doctors is Violation





Decision To Prosecute Doctors is Violation
Posted by CN Staff on July 16, 2003 at 08:57:59 PT
By Barton Aronson
Source: FindLaw 
The Justice Department has decided that criminalizing marijuana - a perfectly defensible position - also requires criminalizing talking about marijuana. That's the upshot of the decision to appeal the ruling of the U.S. Court of Appeals for the Ninth Circuit in Conant v. Walters, which barred the government from prosecuting doctors who inform patients about the benefits of medical marijuana. Federal policy on medical marijuana has grown more inflexible even as the scientific community's view of its efficacy grows more fluid. Marijuana, like other controlled substances, is available only in tightly regulated situations. 
The government still funds some clinical trials for cannabis, but that's about it; the guy on the corner selling weed in dime bags is probably not covered by a federal grant. In the mid-1990s, several states passed laws permitting doctors to prescribe marijuana to patients for whom other treatments had failed. In response, the Clinton Administration issued regulations clarifying that there were no exceptions in the federal drug laws for medical use of marijuana, and threatening doctors who prescribed it with revocation of their license to prescribe drugs.That policy was upheld by the U.S. Supreme Court two years ago in United States v. Oakland Cannabis Buyers' Coop. The doctors behind the Conant case do not challenge that result.But the federal response to the state medical marijuana laws also included a gag order, first sought by the Clinton Administration, that is the subject of Conant. The gag rule was in the form of regulations barring doctors from even recommending marijuana to their patients, even if the doctors made no effort to prescribe. A federal district court immediately enjoined enforcement of that part of the law, and the Clinton Administration was content to let matters lie.Meanwhile, in 1999, the National Institute of Medicine of the National Academy of Sciences released its two year long study of the issue, undertaken at the request of the White House. It concluded that marijuana had therapeutic value, and that for some fraction of patients, marijuana was superior to other available treatments.Fast forward to the present. Recently, the judge who entered the original injunction against the gag rule decided to make it permanent. The Justice Department appealed to the Ninth Circuit - and lost. Now the Justice Department is taking the case to the Supreme Court. Why the Medical Marijuana gag Rule Violates the First Amendment Conant does not involve doctors who prescribed marijuana. It doesn't involve doctors who grew it or gave it away. At issue is simply the right of doctors to say - and patients to hear - something nice about the medical use of cannabis.While the First Amendment looks askance at most restrictions on speech, this particular regulation is a three-time loser - a viewpoint based restriction on professional speech implicating a matter of intense public interest.The law is a viewpoint-based restriction because it punishes only doctors who recommend medical marijuana - that is, who tell patients marijuana might be good for them. It does not punish doctors who disparage marijuana as a course of treatment.But the government is not supposed to tell us what to think, which is why the law is so hostile to restrictions on speech keyed to the viewpoint expressed by the speaker. In a marketplace of ideas, such restrictions are the equivalent of price controls. The government isn't supposed to set the value attached to ideas, though; that's our job, and under the First Amendment, our right.The law is also troubling because it interferes with a patient's right to hear what her doctor has to say. The courts are highly solicitous of our right to seek advice from professionals. Recently, in Legal Services Corp. v. Velazquez, the Supreme Court struck down a law barring lawyers in federally funded legal clinics from advising welfare recipients about challenges to the welfare laws. These rights are no less urgent when it comes to medical professionals, and maybe even more so. Courts have long recognized the importance of the doctor-patient relationship. While the government protects our health by regulating available courses of treatment, courts have traditionally refused to interfere in what doctors and patients say to one another, and will not assume, when reviewing such regulations, that doctors will give medically unsound advice or that patients need to be protected from what a medical professional views as the truth. The law is particularly quixotic given the government's continued conduct of clinical trials involving marijuana. Under the policy, a doctor could probably be punished for telling a patient about the mere existence of such trials. Surely the Department of Justice will not be prosecuting those who administer grants for the Department of Health and Human Services. Why the Justice Department's Defense of the Law is Unconvincing In the teeth of all this First Amendment law, the Justice Department has defended its position by arguing that a doctor's advice about medical marijuana may just motivate someone to try to get his hands on some marijuana - in other words, to break the law. Obviously, doctors are not allowed to conspire with or aid and abet their patients in getting marijuana, but all of that is already illegal. This policy is aimed at something short of that - a doctor who simply tells a patient, "marijuana would help."That statement could, conceivably, motivate someone to go out and buy marijuana. It could also motivate him to write his congresswoman, sign a petition, or take out a subscription to High Times. None of these results is any more likely than the other, and most of them are not only legal, but at the core of what the First Amendment protects - expressive activity about matters of public concern, which is exactly what the medical use of marijuana is.The mere possibility that a patient would go out and buy marijuana doesn't even approach the exacting legal standards for criminalizing speech. The government is allowed to restrict speech when it is likely to lead to illegal conduct, but the connection - between speech by one and action by another - must be very, very close. The old formulation required that the speech present a "clear and present danger" - something akin to shouting "attack!" to an already angry mob.While the law in this areas has been refined, it has not really changed. If the government wants to limit speech because it may incite crime, then the speech must be intended to do so and be very likely to, imminently, not at some undefined point in the future. The fact that a doctor's statement about the efficacy of marijuana may lead a patient to try to secure some is not a set of facts remotely similar to those rare situations in which this has served as a permissible basis for squelching speech. In light of current law, it is nearly impossible to imagine a Supreme Court opinion faithful to our First Amendment jurisprudence that would leave in place the government's gag order on doctors' speech regarding medical marijuana. Such circumstances call for restraint - not only by the judicial branch, but by the executive branch that appears before it. Barton Aronson is an attorney in Washington, D.C.. Prior to that, he was a prosecutor in Washington, D.C., and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own. Complete Title: Why the Government's Decision to Prosecute Doctors Who Inform Patients of Marijuana's Medical Benefits Is A Blatant First Amendment ViolationSource: FindLaw (US Web)Author: Barton AronsonPublished: Wednesday, July 16, 2003Copyright: 2003 FindLawContact: baronson findlaw.comWebsite: http://writ.news.findlaw.com/Related Articles & Web Site:Conant vs. Walters & Judge Kozinskihttp://freedomtoexhale.com//cw.htmBush Wants Marijuana Ruling Struck Downhttp://cannabisnews.com/news/thread16834.shtml Bush Escalates Marijuana War http://cannabisnews.com/news/thread16827.shtmlBush: Marijuana Laws Up to Stateshttp://cannabisnews.com/news/thread3373.shtml 
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Comment #9 posted by FoM on July 16, 2003 at 12:53:41 PT
I'll Post The Article
I just did a search and it appears that it is a local weekly paper but they don't have it on line. http://www.theava.com/
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Comment #8 posted by FoM on July 16, 2003 at 12:38:37 PT
Just a Note
I wanted to mention why I don't post articles from the Anderson Valley Advertiser. I wish that the article would be published in a newspaper even if it was on line only. When I was told it wasn't in a newspaper I thought I should pass not because of it not being good. 
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Comment #7 posted by Virgil on July 16, 2003 at 12:29:20 PT
Regarding link in comment6
That was a very informative article. It says Trotsky's granddaughter is head of NIDA-....The new head of NIDA ( Trotsky's great-granddaughter! ) is Nora Volkow, not Nina... I'd planned a follow-up column on the ICRS meeting, but developments in the Mikuriya case took precedence this week. Here we have an example of how, by attacking our movement, the Drug Warriors win even if they ultimately lose in court. They put us on the defensive, which takes time, energy, money, and resources ( column inches that could have gone towards an account of scientific progress ). Next week: an interview with Geoffrey Guy of G.W. Pharmaceuticals The author is famous Fred Gardner and it is a truly remarkable piece where almost everything is disingenuous. Just one more paragraph from that article. When Dennis Peron launched the San Francisco Cannabis Buyers Club in the early 1990s, he told Mikuriya "There are people with diseases I never heard of." Mikuriya signed on as medical consultant and began interviewing club members. He determined that cannabis was being used to treat a wide range of conditions, including post-traumatic arthritis, rheumatoid and osteoarthritis, fibromyalgia, seizure disorders, degenerative diseases of the central and peripheral nervous systems, cerebral palsy, multiple sclerosis, post-viral encephalopathy and neuropathies, post-injury pain, glaucoma, Meniere's disease, migraine, gastritis, ulcers, Crohn's disease, colitis ( spastic and ulcerative ), cystitis, thyroiditis, scleroderma, lupus, premenstrual syndrome, intractable itching, motion sickness, sinusitis, allergic rhinitis... 
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Comment #6 posted by afterburner on July 16, 2003 at 12:10:19 PT:
The Details about Dr. Tod Mikuriya 
US CA: Column: Revenge of the Narcs (the Never-Ending Saga) 16 Jul 2003 
Anderson Valley Advertiser 
http://www.mapinc.org/newscc/v03/n1069/a08.html?397
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Comment #5 posted by kaptinemo on July 16, 2003 at 10:30:59 PT:
The bellwether of Freedom
If this latest assault upon civil liberties passes, then there is NOTHING to guarantee the rights of doctor/patient confidentiality from being tossed into the crapper...along with every *other* right of privacy.Of course, those antis fronting for this think they can achieve their chimerical Drug Free Utopia if just a few more of those pesky laws protecting civil liberties get whacked in their blind crusade to 'save the children'.These times remind me of an old song from Mike and the Mechanics, called "Silent Running" http://www.leoslyrics.com/listlyrics.php?id=8897Take the children and yourself 
And hide out in the cellar 
By now the fighting will be close at hand 
Don't believe the church and state 
And everything they tell you 
Believe in me, I'm with the high command (Chorus)
Can you hear me, can you hear me running? 
Can you hear me running, can you hear me calling you? 
Can you hear me, can you hear me running? 
Can you hear me running, can you hear me calling you? There's a gun and ammunition 
Just inside the doorway 
Use it only in emergency 
Better you should pray to God 
The Father and the Spirit 
Will guide you and protect from up here(Chorus)Swear allegiance to the flag 
Whatever flag they offer 
Never hint at what you really feel 
Teach the children quietly 
For some day sons and daughters 
Will rise up and fight while we stood still (Chorus)I sincerely hope we don't get to the point where it will require blood and bullets to get back what has been stolen from us in the name of our children; civil wars...never are. 
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Comment #4 posted by TroutMask on July 16, 2003 at 09:46:44 PT
I don't get it either
Looks to me like what I see going on in Canada: A government going to absurd extremes to prove they believe what they are saying but not having any hope whatsoever of winning. Sort of like the Iraqi information minister; their victory is imminent.-TM
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Comment #3 posted by Virgil on July 16, 2003 at 09:33:11 PT
Not exactly there pal
The government isn't supposed to set the value attached to ideas, though; that's our job, and under the First Amendment, our right.The Constitution outlines the rights and powers of the federal government. What power is not granted to them is retained with the people or the states. The Bill of Rights does not grant us any rights that the Constitution did not intend anyway. The first Amendment and the Bill of Rights are just specific limits on federal power in case those that seized the Republic from the people needed specific guidelines. Many people opposed the Bill of Rights on the grounds that those rights were inclusive rights of the people and that enumeration of rights might leave people the impression that if their rights were not listed they did not exist. No matter how you mince it, the federal government is way over the line in a land called Treason. A patriot would be calling for the impeachment of the Dummy/Puppet that represents the plutocracy and the resignation of every Congressman. Even the ventriloquist won't let the Dummy say "Marijuana is a dangerous drug" or "Marijuana has no medical value." He would be shredded immediately instead of prolonging the process until another chief puppet can be found for the plutocracy.Impeach Bush.
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Comment #2 posted by Ethan Russo MD on July 16, 2003 at 09:31:53 PT:
I Concur
The government cannot win this case. Lookout if they do. There will be a terrific backlash.Why are they appealing it? What do they hope to achieve? That is hard to fathom.
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Comment #1 posted by paulpeterson on July 16, 2003 at 09:26:32 PT
FIRST AMENDMENT
Oliver Wendell Holmes (the Supreme Court Justice) elevated the First Amendment to a "porcedural due process" right, rather than an individual right.This means, in part, that a person doesn't have the right to speak out because he HAS THE RIGHT ANSWER, or even that he MIGHT HAVE THE RIGHT ANSWER, he only has this right because SOCIETY NEEDS ALL OF THE IDEAS IT CAN GET, and if we restrict ideas, WE MIGHT MISS THE BEST ONE, if a citizen is too fearful of speaking out.In other words, we only have this right if WE USE THE RIGHT TO SPEAK OUT, for society's sake.True, content-based (especially view-point specific) speech must not be reigned in. I, for one, am particularly dismayed AND at the same time overjoyed that the Bushit's people are invoking the jurisdiction of the Supreme Court to jump into this fray. THE SUPREME COURT WILL MAKE MINCEMEAT OF BUSH!Just remember, that when the Supremes jettisoned the California "club" plan, they DID NOT SAY THERE IS NO RIGHT TO MEDICAL MARIJUANA, they just said people can't sell pot unless it is part of a DEA sanctioned research program. (In fact, in footnotes, I think Stevens noted that patients might have a stronger case than the pot sellers, to argue for MM rights). The same goes for doctors-freedom to speak out about these things is vitally important to the growth of medical knowledge and progress (to say nothing about the actual patient's right to know these things).Holmes also said some good things about the Civil War. He said that the war to end slavery was no better than slavery itself, in fact the war to end slavery became at one time the parent, spouse, brother, sister, son and daughter of slavery. That's just it: when people claim a god-given mandate for a political aim, it must be mistrusted. When people take up arms to impose their own agenda on others, it is despotic at best.Holmes wanted to encourage discourse at all costs, to avoid an ugly replay of a divisive conflict such as war. What society needs, instead, is to fully discuss changes in society, quickly change to accomodate change, and then to protect the minority from the excesses of the majority.Back to that "procedural due process" argument: the civil rights movement caused our society to again focus on ideology & personal rights. Ideology caused the renewed focus on "divine mandate". The McCarthy era is a hangover from that "ideological" movement.The drug war is an ideological artifact. After some 3 decades of a divisive conflict with rampant forfeitures of freedom, property and rights, we have a "majority" that ruthlessly foists it's mandates on the minority. And guess what? IT'S GOT THIS GOD-GIVEN MANDATE writen all over it!Holmes has already rolled over in his grave. Sorry, Ollie. Somewhere in the midwest. Paul
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