Bush appeal over medical marijuana rejected

WASHINGTON -- The Supreme Court cleared the way Tuesday for state laws allowing ill patients to smoke marijuana if a doctor recommends it.

Justices turned down the Bush administration's request to consider whether the federal government can punish doctors for recommending or perhaps just talking about the benefits of the drug to sick patients. An appeals court said the government cannot.

Nine states have laws legalizing marijuana for people with physician recommendations or prescriptions: Alaska, Arizona, California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington. And 35 states have passed legislation recognizing marijuana's medicinal value.

But federal law bans the use of pot under any circumstances.

The case gave the court an opportunity to review its second medical marijuana case in two years. The last one involved cannabis clubs.

This one presented a more difficult issue, pitting free-speech rights of doctors against government power to keep physicians from encouraging illegal drug use. A ruling for the Bush administration would have made the state medical marijuana laws unusable.

Some California doctors and patients, in filings at the Supreme Court, compared doctor information on pot to physicians' advice on "red wine to reduce the risk of heart disease, Vitamin C, acupuncture or chicken soup."

The administration argued that public health -- not the First Amendment free-speech rights of doctors or patients -- was at stake.

"The provision of medical advice -- whether it be that the patient take aspirin or Vitamin C, lose or gain weight, exercise or rest, smoke or refrain from smoking marijuana -- is not pure speech. It is the conduct of the practice of medicine. As such, it is subject to reasonable regulation," solicitor general Theodore Olson said in court papers.

In states with medical marijuana laws, doctors can give written or oral recommendations on marijuana to patients with cancer, HIV and other serious illnesses.

May encourage states

Even some supporters of the laws had expected the Supreme Court to step into the case. They said the court's refusal to intervene, although it does not address the merits of the case, could encourage other states to consider passing medical marijuana laws.

"It finally definitively puts to rest these federal threats against doctors and patients," said Graham Boyd, an American Civil Liberties Union attorney representing patients, doctors, and other groups in the case.

Robert Kampia, head of the Marijuana Policy Project in Washington, said the court "has eliminated any doubt that states have the right to protect medical marijuana patients under state law, and that physicians have the right to give patients honest advice and recommendations, whether the federal government approves or not."

Keith Vines, a prosecutor in San Francisco who used marijuana to combat HIV-related illnesses, was among those who challenged a federal policy put in place during the Clinton administration. That policy required the revocation of federal prescription licenses of doctors who recommend marijuana.

"If the government is zipping them up, and we're not being told about options, that's negligence," Vines said.

Policy supporters contend that the U.S. Drug Enforcement Administration must be allowed to protect the public.

The San Francisco-based 9th U.S. Circuit Court of Appeals said that physicians should be able to speak candidly with patients without fear of government sanctions, but they can be punished if they actually help patients obtain the drug.

The case is Walters v. Conant, 03-40.

------

On the Net:

Supreme Court case file: http://www.supremecourtus.gov/docket/03-40.htm

American Civil Liberties Union: http://www.aclu.org/DrugPolicy/DrugPolicyMain.cfm

Marijuana Policy Project: http://www.mpp.org/

Drug Policy Alliance: www.drugpolicy.org/