Pubdate: Thu, 10 Aug 2000
Source: Bay Area Reporter (CA)
Copyright: 2000 The Bay Area Reporter / B.A.R.
Contact:  
Address: 395 9th Street, San Francisco, CA 94103
Website: http://www.ebar.com/ 
Author: Katie Szymanski

SMOKY BATTLEGROUND RENEWED IN FEDERAL COURT

Nobody disputes the facts of what is a landmark legal case taking place in
San Francisco: some California doctors recommend medical marijuana to
patients. At issue, however, is whether what those doctors do is punishable
by federal law. The federal government says yes, while the doctors and
patients in the suit - operating under California's medical marijuana
initiative Proposition 215 - say no. U.S. District
Judge William Alsup will decide. 

It was exactly the scenario feared when voters first passed Proposition 215
in 1996. Not exempt from federal laws regarding illicit substances, the
state may look the other way when in the company of grass, but Uncle Sam
will not, or so said the threats from the Clinton administration four years
ago. It was drug czar Barry McCaffrey who declared after the passage of
Proposition 215 that any doctors who prescribed or recommended marijuana
would lose their federal licenses to prescribe drugs, would not be eligible
for
Medicare and MediCal payments, and could face criminal prosecution. 

That led to Conant v. McCaffrey, a class action suit filed by Dr. Marcus
Conant and others, seeking a permanent injunction that would protect doctors
from such threats and their consequences. The plaintiffs won a preliminary
injunction in 1997 that prohibited federal officials from threatening or
punishing physicians for recommending medical marijuana to patients, because
such threats squelch speech and therefore violate the First Amendment. Last
Thursday, August 3, the parties returned to federal court in San Francisco
to duke it out for the final ruling. The original preliminary injunction
ruling against the government will either be extended or withdrawn. 

The class action suit, as stated by the plaintiffs' attorneys, including the
American Civil Liberties Union of Northern California, "seeks a declaration
that physicians and patients have the right, protected by the First
Amendment to the U.S. Constitution, to communicate in the context of a bona
fide physician-patient relationship, without government interference or
threats of punishment, about the potential benefits and risks of the medical
use of marijuana." 

For the federal government, that very same free speech means that a doctor
is aiding and abetting a person in obtaining an illegal drug that has been
proven "harmful." Interestingly, the government cited the Food and Drug
Administration as a source that has documented the evils of marijuana, but
plaintiff Conant worked on the FDA's report on Marinol - the marijuana-based
medicine to treat weight loss and medical pain - and that report was
favorable. Nevertheless, whether the United States can instill fear into
doctor-patient discussions is the true issue, and both sides called for a
summary judgment last week since neither disagree about the basic facts of
the case. 

Plaintiff Conant is a longtime Bay Area HIV/AIDS specialist. He is joined in
his suit by Dr. Debasish Tripathy, an oncologist specializing in breast
cancer at the University of California at San Francisco Mount Zion Breast
Care Center; Dr. Howard D. Maccabee, medical director of the Radiation
Oncology Center in Walnut Creek; Dr. Stephen Follansbee, chief of staff at
Davies Medical Center in San Francisco and medical director of the Institute
for HIV Treatment and Research at Davies Hospital; Dr. Arnold Leff, a
specialist in AIDS and geriatric medicine; and Dr. Neil Flynn, physician at
the AIDS and Related Disorders Clinic at the University of California,
Davis. Additionally, there are five patient plaintiffs who credit medical
marijuana for their survival of serious illnesses after conventional drug
therapies failed. 

In addition to McCaffrey, defendants include Secretary of Health and Human
Services Donna Shalala and Attorney General Janet Reno. 

The case has been renewed on the heels of a recent federal court victory for
California pot clubs whereby a United States judge ruled that potential harm
to patients should have been considered before dispensaries were targeted
for closure. Pot activists around the state are hoping that the judge in
this case will follow that example.
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