cannabisnews.com: Justices Say Doctors May Recommend Marijuana Justices Say Doctors May Recommend Marijuana Posted by CN Staff on October 14, 2003 at 21:20:22 PT By Linda Greenhouse Source: New York Times Washington -- The Supreme Court, in a silent rebuff on Tuesday to federal policy on medical marijuana, let stand an appeals court ruling that doctors may not be investigated, threatened or punished by federal regulators for recommending marijuana as a medical treatment for their patients.As a result, doctors in California and six other Western states where voters or legislators have approved marijuana for medical uses like pain relief may now discuss it freely with their patients without fear of jeopardizing their federal licenses to prescribe drugs. Advocates of medical marijuana greeted the court's action as a significant and surprising victory. In 1996, immediately after California voters approved a medical marijuana initiative known as the Compassionate Use Act, the Clinton administration warned doctors that recommending marijuana ``will lead to administrative action by the Drug Enforcement Administration to revoke the practitioner's registration.'' The Bush administration carried the policy forward and appealed the ruling by the United States Court of Appeals for the Ninth Circuit last October that the federal policy violated both the free speech rights of doctors and the ``principles of federalism.''While states have authority to issue licenses to practice medicine, it is the Drug Enforcement Administration that issues licenses to prescribe drugs, without which doctors could not remain in business as a practical matter.The Supreme Court's action, which it took without comment, was unexpected, given that the court is nearly always willing to defer to the executive branch at least to the extent of giving a hearing to a government policy that a lower court has invalidated. The justices may have been persuaded by the appeals court's strong opinion, which was joined by all three members of a panel that included one of the Ninth Circuit's most liberal members, Senior Judge Betty B. Fletcher, and one of its most conservative, Judge Alex Kozinski. Chief Judge Mary M. Schroeder wrote the opinion, which said the government was impermissibly seeking to ``punish physicians on the basis of the content of doctor-patient communications'' and to condemn a particular viewpoint, which she said was ``especially troubling.'' In a concurring opinion, Judge Kozinski said the case was squarely governed by the Supreme Court's states'-rights rulings in a series of recent federalism decisions. The Ninth Circuit upheld an earlier ruling by a federal district judge, William H. Alsup, in San Francisco.Under California's law, a patient whose doctor has approved or recommended marijuana will not be prosecuted by state law enforcement authorities. Of the nine states within the Ninth Circuit, seven - Alaska, Arizona, Hawaii, Nevada, Oregon and Washington, in addition to California - authorize the medical use of marijuana, as do Maine, Colorado and Maryland.In the California case, Walters v. Conant, No. 03-40, 10 doctors, 6 patients and 2 organizations brought a class-action lawsuit in 1997 to challenge the Clinton administration policy. One of the plaintiffs' lawyers, Daniel N. Abrahamson of the Drug Policy Alliance, an advocacy group, said on Tuesday that about 20,000 Californians were using marijuana for medical purposes.Another of the lawyers, Graham Boyd, director of the American Civil Liberties Union's Drug Policy Litigation Project, said that had the court taken the case and overturned the Ninth Circuit, ``it would have been the end of medical marijuana in one fell swoop.''In its Supreme Court appeal, the Bush administration called the Ninth Circuit's ruling "an unprecedented judicial intrusion on the executive branch's investigatory authority.''There were also these other developments on an unusually busy day at the court. Bribery Statute The court agreed to decide whether Congress had exceeded its constitutional authority in 1984 when it enacted a criminal law known as the federal program bribery statute. Popular with federal prosecutors, the law makes it a federal crime to give a bribe of at least $5,000 to a state or local official if the official's government agency receives more than $10,000 a year from the federal government. The law does not require federal prosecutors to prove any connection between the offense and the federal money, other than its existence. The case, Sabri v. United States, No. 03-44, is an appeal by a real estate developer in Minneapolis who was charged with bribing a member of the city council in connection with a proposed development. The Minneapolis housing agency receives about $23 million a year from the federal government. The case has not yet gone to trial. The Federal District Court in Minneapolis dismissed the indictment against the developer, Basim Omar Sabri, on the ground that the bribery law, also known as Section 666, was unconstitutional in the absence of a requirement to show a connection between the conduct and the federal money. The United States Court of Appeals for the Eighth Circuit, in St. Louis, then reinstated the charges under an unusual analysis. The appeals court agreed that the law could not be justified under Congress's authority to attach conditions to the expenditure of federal money. It then proposed an alternative theory that because the law protected the general ``integrity of federal funds,'' it could be seen as authorized by Congress's authority to enact ``necessary and proper'' legislation. The Supreme Court's decision to review this ruling, over the Justice Department's objection, was both unexpected and potentially extremely significant. The Constitution's so-called Spending Clause, under which, in its modern interpretation, Congress may attach conditions to the use of federal money that it could not impose directly on the money's recipients, has so far been exempt from the court's recent wide-ranging re-examination of Congressional authority. Many scholars have considered it only a matter of time before the court turned its attention to this powerful federal tool. ``The conservatives have been looking for this opportunity,'' George D. Brown, a professor at Boston College Law School and an authority on the bribery statute, said in an interview on Tuesday. He added that conservative scholars have paid increasing attention to the particular statute, ``worried about it spinning out into a national anticorruption law,'' he said. The National Association of Criminal Defense Lawyers filed a brief urging the court to find the law unconstitutional. Congress is not authorized to ``criminalize bribery merely because the corrupt transaction in question involves an agent of an organization that, somewhere, receives federal-program funds,'' its brief said. Online Pornography For the third time in six years, the court agreed to review an effort by Congress to prevent access by children to sexually explicit material on the Internet. The law in question is the Child Online Protection Act, which Congress passed in 1998 to replace a broader statute, the Communications Decency Act, which the Supreme Court had declared unconstitutional the previous year. The United States Court of Appeals for the Third Circuit, in Philadelphia, declared the new law unconstitutional last March, finding that it was too broad and was likely to deter too much expression that was appropriate for adults. The appeals court also found the law's undifferentiated definition of ``minors'' - from birth to age 17 - too imprecise to meet the First Amendment's requirement of ``narrow tailoring'' for restrictions on speech. It was the second time the Third Circuit had invalidated the law. Ruling more narrowly in 2000, the appeals court objected to the law's imprecise definition of ``community standards.'' The Supreme Court overturned that ruling in 2002 and sent the case back for reconsideration. The Child Online Protection Act makes it a crime to display material ``harmful to minors'' on the World Wide Web for ``commercial purposes'' in a manner that permits children to gain access. Requiring the use of a credit card or special access code is a permissible defense. In its appeal, Ashcroft v. American Civil Liberties Union, No. 03-218, the administration said that other approaches, like the use of filtering software to block access, would be inadequate. But as the civil liberties union pointed out in urging the justices not to review the case, the administration had argued last spring in its successful defense of a law requiring public libraries to install filters on their computers that this approach was effective in protecting children from inappropriate material. Contraband Search Accepting an appeal by the Bush administration, the court agreed to decide whether customs officers, conducting searches at the border, can remove, disassemble and search a vehicle's fuel tank without the ``reasonable suspicion'' that the Constitution would ordinarily require. The case, United States v. Flores-Montano, No. 02-1794, is an appeal from a ruling by the Ninth Circuit, which has rejected such searches and, in this instance, invalidated the seizure of some 80 pounds of marijuana that agents found in the gas tank of a Ford station wagon that crossed the Mexican border into California. Complete Title: Justices Say Doctors May Not Be Punished for Recommending Medical MarijuanaSource: New York Times (NY)Author: Linda Greenhouse Published: October 15, 2003Copyright: 2003 The New York Times Co.Contact: letters nytimes.com Website: http://www.nytimes.com/Related Articles & Web Site:Walters vs. Conant, 03-40 - PDFhttp://freedomtoexhale.com/walters.pdfBackers of Medical Marijuana Hail Rulinghttp://cannabisnews.com/news/thread17566.shtmlHigh Court Lets Stand Ruling Over Medical Pot http://cannabisnews.com/news/thread17565.shtmlSupreme Court Clears Way for Medical Pot http://cannabisnews.com/news/thread17564.shtml Home Comment Email Register Recent Comments Help Post Comment