United Press International - October 14, 2003
Michael Kirkland, UPI Legal Affairs Correspondent

At issue in the case is whether the federal government may revoke the license of a physician to prescribe medically approved controlled drugs if the doctor also prescribes medical marijuana.

Lower courts in California, including a panel of the U.S. Court of Appeals for the 9th Circuit, have ruled that the government does not have that authority.

Despite a petition from the Justice Department asking the Supreme Court to review the case, the high court denied review Tuesday in a one-line order.

There were no dissents or comments from individual justices.

That means, at least for the present, the government cannot revoke the licenses of physicians in the 9th Circuit who recommend the medical use of marijuana under state law.

Advocates of the medical use of marijuana say it helps in a variety of illnesses, particularly in overcoming the nausea and lack of appetite associated with cancer chemotherapy.

The federal government began its current policy during the Clinton administration in response to 1996 initiatives in California and Arizona. The initiatives "decriminalized" the use of marijuana for limited medical purposes and banned the prosecution of physicians under state law for recommending its use.

However, marijuana is on the federal government's primary list of controlled substances -- Schedule I in the Controlled Substances Act. The federal government also keeps a registration of physicians licensed to prescribe controlled substances.

The new national policy declared that a doctor's "action of recommending or prescribing Schedule I controlled substances is not consistent with the 'public interest,'" and that such conduct would lead to the revocation of a doctor's registration.

A group of California patients and doctors -- including an HIV action group and the Bay Area Physicians for Human Rights -- filed suit in federal court against the national policy.

After presiding over a lengthy trial, U.S. District Judge Fern Smith issued a preliminary injunction in April 1997 that told the government it "may not take administrative action against physicians for recommending marijuana unless the government believes in good faith" and has "substantial evidence" that the doctors aided in the purchase, cultivation or possession of marijuana.

The injunction also specifically prohibited the government and the Drug Enforcement Administration from threatening to prosecute or prosecuting a doctor based upon conduct "relating to medical marijuana that does not rise to the level of a criminal offense."

The government did not appeal the preliminary injunction, but after two years the case was transferred to U.S. District Judge William Alsup, who made the preliminary injunction permanent. The Justice Department appealed.

A 9th Circuit appeals court panel unanimously affirmed the judge's actions, saying that taking action against a doctor who recommends or prescribes the use of marijuana "threatens to interfere with expression protected by the First Amendment."

The department then asked the Supreme Court for review, and Justice Sandra Day O'Connor, who oversees the 9ith Circuit, issued a temporary stay of the injunction.

In a petition filed this summer at the Supreme Court, the department argued in part that the "practice of medicine is subject to reasonable licensing and regulation, even where that practice involves speech."

O'Connor's stay, however, ends with Tuesday's action.

It was the second case dealing with medical marijuana to reach the high court in two years.

In 2001's United States vs. Oakland Cannabis Buyers Cooperative, the Supreme Court ruled unanimously that there is no "medical necessity exception" to the federal Controlled Substances Act.

A federal judge had devised the exception to say that the CSA did not affect state medical marijuana initiatives but the justices reversed that decision.

(No. 03-40, Walters et al vs. Dr. Conant et al.)

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