Pubdate: Mon, 7 Aug 2000
Source: Recorder, The (CA)
Copyright: 1999 NLP IP Company
Contact:  http://www.callaw.com/
Author: Jason Hoppin, The Recorder

JUDGE DIAGNOSES A DRUG QUANDARY

Judge Questions Ban On Docs' Pot Discussion

A vexatious battle in America's war on drugs emerged on a new front 
Thursday -- U.S. District Judge William Alsup's courtroom.

The target is not Colombian drug barons or Capp Street junkies, but a 
platoon of women and men armed with tongue depressors and stethoscopes.

The prize is the right of doctors to counsel their patients that marijuana 
will ease the pain and suffering of some diseases. The American Civil 
Liberties Union is arguing the government should be barred from taking 
action against those doctors.

But government attorneys in Conant v. McCaffrey, 97-0139, said that 
physicians who recommend marijuana as a medical treatment should have their 
licenses to prescribe drugs yanked.

"Number one, it exposes patients to drugs ... which have been unavailable 
medically under federal law, and number two, it exacerbates the drug 
trafficking problem," said Department of Justice attorney Joseph Lobue.

Judge Alsup, who came into court Thursday armed to the teeth with 
hypotheticals, was skeptical.

"A recommendation is nothing more than information. It isn't a drug," Alsup 
said.

He said a patient, on the advice of a doctor, could fly to Switzerland to 
obtain government-approved marijuana or enroll in one of the few medical 
marijuana scientific studies being conducted here -- neither of which would 
violate laws prohibiting buying or selling controlled substances.

"The problem with your position is that it assumes that the patient is 
going to act illegally as soon as he leaves the office," Alsup told the DOJ 
lawyer.

The judge was also fully aware that the Ninth Circuit U.S. Court of Appeals 
had recently overturned the decision of his courthouse neighbor, U.S. 
District Judge Charles Breyer, in an unrelated case. Breyer was ordered to 
consider the medical necessity of marijuana as a viable defense.

Alsup said that ruling raised significant questions, asking how a medical 
necessity defense could ever be staged without a doctor testifying in court 
that marijuana is a viable treatment.

"If the doctor came in to testify, you'd be waiting out there with an 
indictment to nail him because he recommended marijuana?" Alsup asked Lobue.

Lobue said no, insisting the government would only prosecute doctors who 
"aided and abetted" in the drug's distribution.

But the government does want the right to revoke doctors' licenses to 
prescribe drugs. Medically, marijuana is most commonly used as a treatment 
for AIDS-related symptoms and glaucoma or to ease the effects of chemotherapy.

The ACLU argued the case on First Amendment grounds. It is asking Judge 
Alsup to extend and clarify a preliminary injunction against the punishment 
or prosecution of doctors entered by former Northern District Judge Fern Smith.

"She didn't describe in any way what doctors are able to do," ACLU attorney 
Graham Boyd said. "Doctors remain utterly confused about what it is they 
can or cannot say."

The confusion, he said, is leading to a chill on doctors' communications 
with their patients. Boyd is seeking a clearer ruling granting doctors wide 
immunity in such cases.

But Alsup remarked that a strengthening of Smith's injunction could be 
"more draconian," and was worried that the suit seemed aimed at Clinton 
administration policy.

"There's something about the posture of this [case] that I can't quite put 
my finger on," he said at one point.

Alsup hinted that he was concerned about issuing a ruling that would 
unintentionally set a precedent that overstepped the aims of the suit, 
perhaps not only insulating doctors from criminal prosecutions but allowing 
them to recommend other drugs classified as having no medicinal value.

"Any Schedule I drug, they could recommend it?" the judge asked.

"It's speech," Boyd replied.

"What I hear you saying is, the doctor could not be punished for 
recommending crank," Alsup said.

Boyd responded by saying crank -- or methamphetamine -- was outside 
doctors' standard of care, while marijuana has been increasingly accepted 
as a medical alternative.
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