Pubdate: Wed, 15 Oct 2003 Source: Dallas Morning News (TX) Copyright: 2003 The Dallas Morning News Contact: http://www.dallasnews.com/ Details: http://www.mapinc.org/media/117 Author: Clarence Page ANTI-POT ZEALOTS LOSE ONE So Long To A Misguided Gag Rule On The Medicinal Use Of Marijuana WASHINGTON -- It was a small step for the U.S. Supreme Court, but one giant leap toward a sane drug policy. I'm talking about the high court's refusal Tuesday to hear the Bush administration's appeal of a lower court ruling allowing doctors to recommend the medicinal use of marijuana to their patients. Had the Supreme Court decided to hear the case, it would have had a golden opportunity to rip the innards out of laws passed by various states to legalize or decriminalize the medicinal use of marijuana. But it didn't. Instead, this conservative Supreme Court wisely decided to reject the Bush administration's appeal of a ruling that came from what is reputedly the most liberal appeals court, the San Francisco-based 9th U.S. Circuit Court of Appeals. In the case of Conant vs. Walters, Dr. Marcus Conant, a San Francisco AIDS specialist, challenged the federal policy. He and other doctors argued quite reasonably that they should be as free to discuss the pros and cons of marijuana as they are to talk about red wine reducing the risk of heart disease--or about "vitamin C, acupuncture or chicken soup." The 9th Circuit agreed. Although doctors still can be punished if they actually help patients obtain the drug, at least they are now free to discuss the subject. So far, eight states have laws legalizing marijuana for patients with physician recommendations: Alaska, California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington. Thirty-five states have passed legislation that reduces penalties for medicinal use of marijuana or otherwise recognizes medicinal value. But marijuana remains illegal under federal law. The U.S. Supreme Court, in its wisdom, declined to be persuaded by Solicitor General Theodore Olson's argument that this was a law-enforcement issue, not a free-speech issue. "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," he said in court papers. "It is the conduct of the practice of medicine. As such, it is subject to reasonable regulation." If so, the high court does not appear to have found a compelling reason for "reasonable regulation" to include banning doctors from freely discussing marijuana among other options to which a patient might turn to ease the pain of an illness. It is risky to read too much into any decision by the Supreme Court. Sometimes, for example, the justices will take a pass on an appeal but decide to hear a similar case later that is brought on different grounds. But given the long standing record of Chief Justice William Rehnquist and some others on this court of strong leanings in favor of states rights, it is not hard to understand why the justices decided to err on the side of free speech, privacy and public health in leaving the highly personal matter of doctor-patient consultations to the states. Good for them. Now they should take the next step: Get the federal government off the backs of state medicinal marijuana laws. In Washington, House bills to leave the medicinal marijuana issue to the states have pulled together sponsors as diverse as liberal Barney Frank (D-Mass.) and libertarian Dana Rohrabacher (R-Calif.). Unfortunately, the legislation languishes. Polls tend to show a large majority of Americans support allowing marijuana for medicinal use, although not necessarily for recreational use. But progress is held up by a vocal minority of anti-pot zealots who would rather treat marijuana as a matter of crime and punishment, instead of public health. - --- MAP posted-by: Beth Wehrman