Source: NYT Magazine, July 20, 1997 Contact:Mention "December 30" to any physician in the state of California and he or she will know precisely what you're thing about. That was the day when Gen. Barry McCaffrey; flanked by Attorney General Janet Reno, Secretary of Health and Human Services Donna Shalala and a D.E.A. official stood before the television cameras to deliver an unprecedented threat to the doctors of California. According to a statement issued at the news conference, "a practitioner's action of recommending or prescribing Schedule I controlled substances" like marijuana ... "will lead to administrative action by the Drug Enforcement Administration to revoke the practitioner's registration." Though doctors are licensed by the states, without a D.E.A. registration they cannot prescribe medicine cannot, in effect, practice. The new policy also threatened to criminally prosecute doctors who recommend medical marijuana, and to exclude them from Medicare and Medicaid. Exactly how the Clinton Administration would deal with the passage of Proposition 215 had been a lively subject of speculation. The Administration took a hard line during the campaign, which surprised none of Prop 215's proponents: Clinton could scarcely afford to appear "soft on drugs" at a time when Bob Dole was getting some traction with the issue. One of the Dole campaign's most effective and oftenrun spots featured old footage of the President muttering that he regretted not having inhaled. Once Clinton was safely reelected, however, some in the medicalmarijuana movement held out hope the Administration would play down the issue, treat California as an anomaly or, possibly; an experiment. But the history of the drug war is a history of increasing Federal power (it had its origins in Richard Nixon's desire to "federalize" the crime issue), and Proposition 215 (along with a similar initiative that passed in Arizona) posed an unprecedented threat to that power that had to be turned back. Moreover, Clinton's advisers reportedly feared that medical marijuana could become the "gays in the military" of his secondterm transition a tangential but distracting social issue that threatened to expose him to attack from the right. The Administration reportedly considered going to court to challenge the California law, but it discovered it had no constitutional leg to stand on a state being free to amend its criminal code. The decision was then made to go after the doctors, the one group in California firmly under Federal control. Coming in the middle of the slow news week between Christmas and New Year's, the new Government initiative could not have made much more noise. At the news conference, the phalanx of officials laid out the Government's case against medical marijuana. The passage of Proposition 215 (and Proposition 200 in Arizona) "poses a threat" to the Federal war against drugs, and the officials took pains to reassert the Federal Government's powers, both to enforce the drug laws ("We want to make clear," Attorney General Reno said, "that Federal law still applies") and to regulate prescription drugs. McCaffrey spoke of the Federal Government's special responsibility to insure the safety and effectiveness of medicine through a drugapproval process that had "prevented thalidomide and Laetrile and other nonsense substances from going in front of the American public." Proposition 215 "is not a medical proposition," McCaffrey told reporters. "This is the legalization of drugs we're concerned about." McCaffrey made much the same point when I spoke to him earlier this month. He explained that "some very cunning people have displaced the argument for legalization which Americans overwhelmingly reject to one that is more acceptable." He attributes support in California, and elsewhere, for medical marijuana to the fact that, understandably, "a lot of Americans are worried about pain management." McCaffrey went on to express concern about the referendum process that legalized medical marijuana. Proposition 215 "isn't part of the medical process there's no physical exam, no prescription," he says. "An aromatherapist, a 'care giver,' even a patient can grow their own in the backyard& We don't tell people to grow their own heart medicine! We don't decide flight rules for L.A. airport by plebiscite!" McCaffrey is worried too about the effect medical marijuana will have on marijuana use among teenagers. 'As the fear of marijuana continues to go down," he told me, "use among young people goes up." Marijuana use among teenagers has, in fact, been rising in recent years, though it has not reached the levels (35 percent and more) seen in the 70's. "Kids are hearing that marijuana is a medicine, that it can cure these various illnesses. How can anything that's medicine be that bad?" McCaffrey subscribes to the theory that marijuana is a "gateway" drug, and he cited recent studies that have found a statistical correlation between teenage marijuana use and later addiction to harder drugs. Anything that diminishes the fear of marijuana should trouble us, he argues, which is why Prop 215 sends a "terrible message" to the nation s youth. But the loudest message of the news conference on Dec. 30 was the one delivered to the doctors of California, who heard the Attorney General of the United States tell them that the act of recommending marijuana to a patient could cost them their livelihood. And in the short term, the threat had the intended effect: doctors stopped writing letters of recommendation; many even stopped discussing marijuana with their patients, or returning calls from cannabis clubs seeking to confirm diagnoses. More than one doctor told me that patients had probably been better off before Proposition 215, when doctors had actually felt freer to recommend marijuana. It is true that marijuana had been a quiet, relatively uncontroversial part of American medical practice for years before Proposition 215, though it's hard to know exactly how commonly it was recommended. When, in the mid80's, a D.E.A. administrative law judge held hearings on rescheduling marijuana as a Schedule II drug so doctors could prescribe it, he concluded that marijuana already had an "accepted medical use," especially among doctors treating cancer patients. ("Marijuana, in its natural form, is one of the safest therapeutically active substances known to man, Judge Francis Young wrote in a 1988 decision that was promptly overruled by the D.E.A.) One Harvard Medical School survey of 2,000 oncologist s conducted in 1991 found that 44 percent had recommended marijuana to their patients. I'm told it is not at all uncommon to smell marijuana smoke in the cancer wards of American hospitals. Talking to doctors about marijuana, I heard little of the evangelical fervor I came to expect from patients. With the exception of AIDS specialists, few regarded marijuana as much more than a "second or third line treatment" for their "refractory patients" the ones that don't respond to conventional medicines. Many recognize the therapeutic value of THC, but are troubled by the "delivery system" inhaled smoke that contains some 400 poorly understood compounds, several of which are carcinogens. Dr. Debasish Tripathy; a prominent breast cancer specialist in San Francisco, told me he typically has a handful of patients for whom marijuana is the only drug that will quell the nausea induced by chemotherapy nausea so debilitating that patients will sometimes choose to discontinue treatment rather than endure it. Tripathy regards marijuana as a treatment of last resort (though since Dec. 30 he has declined to recommend it even in those cases), but he also emphasizes just how important it is to have such drugs in the pharmacopeia. "The whole notion of a 'best medicine' is erroneous," Tripathy explains, because patients vary so in their response to drugs. "Indeed, the phrase 'best medicine' belies the concept of individualized care." Like many of the doctors I spoke to, Tripathy seems somewhat mystified by the Government's intransigence on the subject of marijuana, particularly in view of its comparative safety. "Marijuana is far less toxic than many of the medicines I prescribe to my cancer patients," Tripathy points out. Doctors are accustomed to objectively weighing the benefits and risks of any treatment, and the unwillingness of the Government simply to let science decide the issue of medical marijuana is incomprehensible to them. Tripathy would like to see more studies, especially trials comparing the effectiveness of Marinol and smoked marijuana in combating nausea. Dr. Donald Abrams, an AIDS researcher at the University of Califomia, San Francisco, has been trying to organize just such a trial for four years. Though the F.D.A. has approved his study; the D.E.A. and the National Institute of Drug Abuse have refused to give him access to the marijuana he needs to carry it out. In the wake of 215's passage, General McCaffrey began calling for "science not ideology" to settle the medicalmarijuana debate. McCaffrey has ordered a comprehensive National Academy of Sciences review of the literature on the subject, but the timing of the study it won't be completed until shortly after the next round of ballot initiatives in 1998 prompts many advocates to dismiss it as a clever delaying tactic. Even so, McCaffrey's call for more science is significant, for it initiates a process that might prove ineluctable. A similar review conducted during the Carter Administration wound up lending support to the medical use of marijuana. (Though it was suppressed as a result.) For many California doctors, what the Government dismisses as "anecdotal evidence" for the efficacy of marijuana is of course just an unflattering name for their own clinical experience, which has already been encouraging enough to justify the drug's use without waiting for large clinical trials or F.D.A. approval. This is perhaps particularly true among doctors who treat AIDS, a corner of American medicine that has been especially openminded about experimental treatments and impatient with the traditional drugapproval process. "Many of us have been willing to work ahead of the data on AIDS," Capaldini told me. "Much of the progress that's been made in the last few years has come from our willingness to try nonstandard medicines." She cited as an example the use of hormones to combat wasting syndrome. Doctors who treat AIDS are by far the ones most enthusiastic about medical marijuana. Dr. Virginia Cafaro is a physician with the Conant Medical Group, the largest AIDS practice in San Francisco. Her first encounter with medical marijuana came seven or eight years ago, when her patients began reporting that smoking pot helped relieve their nausea and stimulated their appetite. "I looked into it and found it was being used by oncologist s," she told me, "so I began recommending it for cases where nothing else was working." But if the lack of big clinical trials and F.D.A. approval haven't inhibited Dr. Cafaro from using medical marijuana in her practice, General McCaffrey's Dec. 30 threat certainly has. "Since the threats by Federal officials," she has written, "I have avoided directly broaching the subject of medical marijuana even with patients who could, in my judgment, obtain marked relief" from it. Other doctors have adopted a "tell, don't chart" policy: they recommend marijuana, but don't write the information down, either in a letter or on the patient's chart. Some told me they now look askance at any new patient who inquires about marijuana, wondering if perhaps he might be an undercover D.E.A. agent. The doctors' paranoia was further fueled in January; when Dr. Robert Mastroianni, a family physician in Pollack Pines, near Sacramento, received an earlymorning visit from two D.E.A. agents. They produced a letter of recommendation he'd written for medical marijuana after the passage of 2l5, and asked to see his D.E.A. registration number. The agents tried to interrogate him, but the doctor refused to answer questions without a lawyer present. A local pharmacist was also questioned by D.E.A. agents, who asked to review Mastroianni's prescription records. Later in January, Mastroianni and numerous other doctors supported a dozen California physicians (including Cafaro and Tripathy) who filed a classaction suit challenging the Government's policy of punishing doctors who recommend marijuana. The suit argued that the threats made by General McCaffrey and others on Dec. 30 violated the First Amendment right of doctors to speak freely to their patients. The Government responded that doctors were free to "discuss" marijuana, but not to recommend" it, which was tantamount to aiding and abetting a Federal crime. Federal Judge Fern Smith disagreed: "The First Amendment allows physicians to discuss and advocate medical marijuana even though use of marijuana itself is illegal." In April the judge issued a preliminary injunction barring the Government from threatening or taking any action against doctors who recommend marijuana to their patients. The Government may eventually prevail at trial, but for the time being it has lost its principal weapon against Proposition 215. Perhaps it is merely a coincidence, but it was only days after Judge Smith issued her temporary restraining order against the Government that the D.E.A. raided Flower Therapy a raid that gave Californians a striking reminder of the continued relevance of Federal power. Even before Judge Smith's injunction, the Administration's tactic had begun to look like a strategic blunder. For one thing, it has politicized the medical establishment on medical marijuana in a way it hadn't been before. Prominent medical journals leapt to the defense of California's doctors, including the staid New England Journal of Medicine, which in January entered the debate with a un characteristically heated editorial that argued: "A Federal policy that prohibits physicians from alleviating suffering by prescribing marijuana for seriously ill patients is misguided, heavyhanded and inhumane." In May the California Medical Association, which had conspicuously failed to support 215 last fall, announced its support for a bill in the State Legislature to expand the Compassionate Use Act by establishing a medicalmarijuana research center at the University of California that would conduct clinical trials. The Government's war against doctors may also have played into the hands of its opponents in the drugpolicy reform movement. "Going after doctors is the only thing they could have done that was dumber than going after terminal patients," a leading promarijuana strategist told me. "From the beginning our thesis has been that the medicalmarijuana issue will get people to start questioning the larger war on drugs. It opens up a contradiction between what the Government has been saying about drugs and what people feel is correct. Dec.30 opened that contradiction even further. Because how can you really say the drug war is about Americans' health when you're going after their doctors?" The Doctors