Pubdate: Thu, 16 Oct 2003 Source: Oregonian, The (Portland, OR) Copyright: 2003 The Oregonian Contact: http://www.oregonlive.com/oregonian/ Details: http://www.mapinc.org/media/324 Author: Don Colburn MEDICAL MARIJUANA SURVIVES CHALLENGE U.S. Justices let stand a ruling saying doctors can talk to patients about marijuana The U.S. Supreme Court refused Tuesday to let the Justice Department punish doctors in Oregon, California and seven other states for recommending marijuana to their ill patients. The ruling was a setback for the Bush administration, which had sought to punish doctors who recommend marijuana -- or even discuss the drug's possible benefits -- by revoking their federal licenses to write prescriptions. The justices declined to review a lower-court decision favoring the doctors. A ruling in favor of the federal government would have gutted the nine states' medical marijuana laws, which allow patients to smoke pot with a doctor's recommendation. Besides Oregon, the states are Alaska, Arizona, California, Colorado, Hawaii, Maine, Nevada and Washington. "This is a very conservative court," said Bruce Mirken, of the Medical Marijuana Project, a national advocacy group. "It was handed a case that would have allowed it to cut the heart out of all these state medical marijuana laws. They chose not to do it, and that's historic." Nevertheless, growing, selling or possessing marijuana remains illegal under federal law, and federal prosecutors still can go after cultivators, dealers and users, as they have in raids on "cannabis clubs" in California. The Supreme Court ruled against medical marijuana clubs in 2001, declaring there is no medical exception to the federal law against marijuana. On Tuesday, supporters of medical marijuana were jubilant. "It's one thing to say you're opposed to medical marijuana," said John Sajo, director of Voter Power, an Oregon group that helps medical marijuana patients. "But to say doctors can't even talk about it to their patients -- that would fly in the face of our Constitution, as I see it." The justices let stand an October decision by the 9th U.S. Circuit Court of Appeals, which held that doctors have a constitutional right to speak candidly with their patients about marijuana. "Physicians must be able to speak frankly and openly to patients," the 9th Circuit said. Sajo said he hoped the ruling would make Oregon doctors less reluctant to discuss medical marijuana with patients. Fear of federal prosecution is "one of the reasons for the Leveque phenomenon," he said. He was referring to Dr. Phillip Leveque, an 80-year-old osteopath whose practice consists of examining patients who seek a doctor's signature on their application for a medical marijuana card. Leveque estimates he has signed more than 2,000 applications and renewals. As the Supreme Court was making its announcement Tuesday, Leveque was heading for his weekly clinic at an unimposing one-story brown building in Southeast Portland. Before Voter Power moved its offices there last week, the building housed a roofing company and a church. Leveque sees about 80 patients a week in clinics in Portland, Eugene, Roseburg, Grant's Pass, Medford and Ashland. "I think it's great," Leveque said of the court ruling. He described marijuana as "a benign and useful drug." The Oregon Board of Medical Examiners last year fined Leveque $5,000 and suspended his license for 90 days for signing medical marijuana applications without examining all patients, conducting medical tests or keeping adequate records. Leveque said the only reason he continues to see patients is because most doctors won't. "The negative publicity that hit me has scared the socks off em," he said. Oregon's Medical Marijuana Act, approved by voters in 1998, took effect in May 1999. Under the law, a doctor must verify that a patient has a "debilitating medical condition" such as cancer, glaucoma, AIDS or severe pain. The patient or a designated caregiver must grow the marijuana. More than 6,000 Oregonians, from all 36 counties, have cards allowing them to grow and use marijuana for medical reasons. Nearly 1,100 doctors in Oregon have signed at least one patient's application. In their appeal, federal prosecutors argued that doctors who recommend marijuana are interfering with the drug war and circumventing the government's judgment that the illegal drug has no medical benefit. Ongoing fight since 1996 The conflict began after California voters passed the nation's first medical marijuana law in 1996. The Clinton administration warned that doctors who recommended marijuana could lose their federal licenses to prescribe medicine and face criminal charges. Seven California doctors and some of their patients sued during the Clinton administration, and the Bush administration continued the fight. The case pitted the First Amendment free-speech rights of doctors against government authority to discourage illegal drug use. Some California doctors and patients, in court papers, 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 Bush administration argued that public health -- not free speech -- was at stake. The only practical effect of Tuesday's decision on Oregon's medical marijuana law, said Kevin Neely, spokesman for the Oregon Department of Justice, is that it averts "any chance that physicians would be prohibited from talking to patients as mandated under the law." Conflict over assisted suicide The marijuana case differs in a significant way from the Bush administration's attempt to use federal drug laws to thwart Oregon's assisted-suicide law. In the case of marijuana, doctors recommend use of the drug, which a lower court said was protected as free speech under the First Amendment. In the case of doctor-assisted suicide, doctors prescribe an overdose of narcotic drugs that terminally ill patients -- who must request the lethal drugs in writing -- can use to hasten death. Supporters of assisted suicide have not claimed that doctors have a First Amendment right to prescribe drugs. Rather, they say U.S. Attorney General John Ashcroft went beyond his authority under the Controlled Substances Act when he threatened to revoke the licenses of doctors who comply with the Death With Dignity Act. After Oregon challenged the Ashcroft ruling in court, a federal judge sided with the state. The case is pending before the 9th Circuit Court of Appeals, the same court that ruled on the marijuana case. For more information on Oregon's medical marijuana program, call 503-731-4002, ext. 233, or check the Web site www.dhs.state.or.us/publichealth/mm. Writer Ashbel S. Green of The Oregonian contributed to this report. - --- MAP posted-by: Larry Stevens