Independent Perspective News

By ADAM LIPTAK

Federal appeals court in San Francisco ruled yesterday that the federal government may not revoke the licenses of doctors who recommend marijuana to their patients.

The ruling, by a three-judge panel of the United States Court of Appeals for the Ninth Circuit, is the biggest legal victory yet for voter initiatives in nine states that legalized marijuana for medical purposes. It upholds a five-year-old lower-court decision that blocked the government's efforts to frustrate a 1996 initiative in California.

There was no immediate word if the government would appeal yesterday's ruling. Spokesmen for the Justice Department and the Drug Enforcement Administration said only that the government was reviewing the decision.

In prohibiting the government from enforcing the policy, the appeals court, one of the most liberal in the nation, entered a complex and heated debate at the intersection of medical science, the First Amendment rights of doctors and patients, and federal power over the states.

"This is one of those big culture-war decisions," said Graham A. Boyd, an American Civil Liberties Union lawyer who represented the plaintiffs.

The judges accepted every major argument offered by the plaintiffs, who are California doctors and patients with serious illnesses.

The California law, Proposition 215, allows patients to grow and possess marijuana so long as they have a doctor's written or oral recommendation. It says doctors may not be punished for making such a recommendation.

Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington have similar laws; all but Maine and Colorado are in the Ninth Circuit. Rather than focusing on doctors, federal efforts to override state medical marijuana initiatives have generally taken the form of raids on marijuana clubs and collectives, mostly in California.

Yesterday's decision, written by Chief Judge Mary M. Schroeder, held that the policy effectively prohibited candid discussions between doctors and patients, in violation of the First Amendment.

"Physicians must be able to speak frankly and openly to patients," the court said.

Quoting Justice John Paul Stevens of the Supreme Court, Judge Schroeder added that federal courts should defer to the states in "situations in which the citizens of a state have chosen to serve as a laboratory in the trial of novel social and economic experiments."

Judge Schroeder was joined by Judge Betty B. Fletcher, who like her was appointed by President Jimmy Carter, and by Judge Alex Kozinski, who was appointed by President Ronald Reagan. Mr. Boyd of the A.C.L.U. said that because patients in California and elsewhere may use medical marijuana only with a doctor's recommendation, the federal policy could have frustrated all medical marijuana initiatives.

"This is really the central issue in medical marijuana," he said.

The appeals court held that a recommendation is not a prescription. A doctor actually prescribing marijuana, the panel said, "would be guilty of aiding and abetting in violation of federal law."

Dispensing information rather than drugs, the court held, is protected by the First Amendment. The court rejected the government's argument that "a doctor's `recommendation' of marijuana may encourage illegal conduct by the patient." It called the link between the prohibited speech and criminal conduct "too attenuated."

Vikram Amar, a law professor at Hastings College of Law in San Francisco, said that aspects of yesterday's decision were too sweeping.

"The big flaw in the majority's First Amendment argument," he said, "is that it doesn't acknowledge that the government has traditionally been allowed to regulate the professions without violating the First Amendment."

Professor Amar also criticized another aspect of the decision, which forbade the government to investigate doctors on the basis of their recommendations.

"The idea that you can't initiate an investigation based on an invocation of the First Amendment is bizarre," he said. Judge Kozinski, in a concurring opinion, said that doctors would have had much to lose and little to gain by violating the government's policy.

"They may destroy their careers and lose their livelihoods," he wrote. "Only the most foolish or committed of doctors will defy the federal government's policy and continue to give patients candid advice about the medical uses of marijuana." Judge Kozinski described what he called "a legitimate and growing division of informed opinion" on the medical usefulness of marijuana.

He cited reports by the National Academy of Sciences, the Canadian government and the British House of Lords ("a body not known for its wild and crazy views," the judge noted) concluding that marijuana has at least potential medical uses in controlling pain and nausea and in stimulating the appetite.

Eugene Volokh, a law professor at the University of California at Los Angeles, said the decision took issue with a particularly intrusive form of federal interference with state law.

"They are really making it impossible for the state to implement its own regulatory scheme," he said of the federal government's policy.

Keith Vines, an assistant district attorney in San Francisco, is one of the plaintiffs. In 1993, he developed wasting syndrome, a little understood metabolic change associated with H.I.V. infection that caused his weight to drop from 195 pounds to 145 pounds. "I was a patient facing death desperately looking for an option," he said.

After Proposition 215 passed in 1996, Mr. Vines discussed marijuana with his doctor. She recommended it, and he found it helped his appetite.

"It was a miracle," he said. "My weight came back." Mr. Vines, who prosecuted one of the largest marijuana cases in California history and says he opposes recreational use of the drug, was pleased by yesterday's decision.

"The decision today is of really great practical importance," he said. "The federal government has no business telling doctors what they can and can't say."