Important note: Information in this article was accurate in 1997. The state of the art may have changed since the publication date.
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The San Francisco Examiner - Thursday, May 1, 1997
Emelyn Cruz Lat of the Examiner Staff
U.S. District Court Judge Fern Smith ruled Wednesday that doctors could recommend marijuana to patients as long as they do not help them obtain the drug. The ruling applies only to doctors treating patients diagnosed as HIV positive or with AIDS, glaucoma, cancer, seizures or muscle spasms associated with a chronic, debilitating condition.
Smith's ruling undermines federal drug authorities' threats of a crackdown on doctors who complied with Proposition 215, California's successful November ballot measure legalizing possession and cultivation of marijuana if a doctor so prescribes.
Graham Boyd, lead attorney for a coalition of Bay Area doctors, patients and non-profit groups that brought the suit against the federal government, declared Smith's decision a first-round triumph.
It "means the federal war on drugs, which became a war on doctors, has changed dramatically," he said. "This is a tremendous victory."
Federal authorities declined comment Wednesday, saying they had not reviewed the 43-page decision.
They could seek a stay of the preliminary injunction granted by Smith, or they could appeal it.
"The Department of Justice will take appropriate actions following review of the documents," said Bob Weiner, spokesman with the U.S. Office of National Drug Control Policy.
The case will try to mediate opposing federal and state drug policies. Notwithstanding California's Prop. 215, possession and cultivation of marijuana remain federal crimes.
In December, federal drug czar Barry McCaffrey said doctors who recommend or prescribe marijuana could face criminal prosecution, revocation of their prescription licenses and be denied participation in Medicare and Medicaid.
Federal officials later decided doctors may discuss marijuana with their patients but may not recommend or prescribe it.
In granting a preliminary injunction against the federal policy Wednesday, Smith called it confusing and unclear.
Physicians "remain unsure as to whether bona fide discussions regarding medical marijuana will result in federal punishment," she wrote.
Dave Fratello, spokesman for Americans for Medical Rights, said Smith's ruling reaffirms the plaintiffs' arguments that the federal drug policy violated doctors and patients' First Amendment rights to free speech and interfered with the practice of good medicine.
"The drug czar and the DEA (Drug Enforcement Agency) are both paying a price for designing an unconstitutional policy to thwart Prop. 215," he said. "They were attempting to overrule the voters and they've just been stopped cold."
American Civil Liberties Union lawyer Ann Brick said, "Doctors can now go back to practicing medicine and no longer have to worry about practicing law."
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