ACLU Urges Federal Court to End Government Persecution Of Doctors Over Medical Marijuana

August 3, 2000 12:00 am

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SAN FRANCISCO — The American Civil Liberties Union today urged a federal court to permanently block the federal government from censoring or criminally prosecuting California doctors who recommend medical marijuana to their patients.

“Today we are asking the court to put an end once and for all to the White House’s politically driven attempt to negate the will of California voters by threatening physicians,” said Graham Boyd of the ACLU’s Drug Policy Litigation Project, who argued the case before U.S. District Judge William Alsup.

The threat of jail or censorship remains even after a 1997 preliminary court order barred federal law enforcement officials from acting, according to ACLU legal papers filed on behalf of a group of physicians and their seriously ill patients.

“The federal government has conceded that a doctor can discuss medical marijuana, but not recommend it,” Boyd added. “But the government refuses to explain the difference between ‘discuss’ and ‘recommend.’ Faced with a vague policy, the only option for many physicians is silence.”

At issue is the language of Proposition 215, approved by California voters in November 1996, which makes it legal for sick people in the state to grow and possess marijuana for medical use when recommended by a doctor.

“The medical community deserves more respect than having a retired General in Washington tell us how to practice medicine,” said Dr. Marcus Conant, a San Francisco specialist in AIDS treatment and the lead plaintiff in the lawsuit.

The Clinton administration maintains that marijuana is illegal under federal law and has pledged to punish doctors who recommend its use. A key part of the federal plan was a threat that physicians who recommend marijuana to patients could lose their right to prescribe drugs, face cutoff from Medicare and Medicaid eligibility and be exposed to criminal prosecution.

But according to the ACLU’s brief, “even now, over three years later, the federal officials most responsible for the policy cannot — or will not — say what it means.”

“This case is not about whether the government should legalize the medical use of marijuana,” said co-counsel Ann Brick of the ACLU of Northern California. “It is about whether the government may prevent doctors from providing a patient with an honest medical opinion recommending marijuana.”

Despite White House efforts to negate the initiative’s intent, courts thus far have consistently rejected the government’s spurious arguments.

A ruling last month by U.S. District Court Judge Charles Breyer cleared the way for an Oakland club to distribute marijuana for medicinal purposes. The court found that the government “still has not offered any evidence to rebut” the group’s findings that cannabis is medically necessary for some seriously ill patients. The government has appealed the ruling to the U.S. Supreme Court.

The Oakland ruling came three days after San Francisco health officials started issuing photo I.D. cards to marijuana users who had their doctors’ approval.

Court papers filed in today’s case also revealed that government officials may have stepped over the line in their zeal to defeat the 1996 initiative at the ballot box.

According to deposition testimony and taped telephone conversations obtained by the ACLU, White House “drug czar” General Barry R. McCaffrey sought exemption from a White House policy preventing the federal government from taking positions on state ballot initiatives.

Although President Clinton agreed to allow McCaffrey to speak out, he was explicitly instructed only to “educate” and not to “oppose” the medical marijuana initiatives in California and Arizona, court papers reveal. Nonetheless, McCaffrey issued press releases urging voters to “vote no” on the initiatives; wrote multiple letters stating that he “opposed” the initiatives, and wrote a memo reporting on rallies he attended to oppose the initiatives.

“We do not, in our suit, accuse McCaffrey of acting illegally in connection with the media campaign or the election activity,” Boyd said. “Instead, we point out that the Administration harbored an extraordinary animus against any deviation from the official orthodoxy that marijuana is a uniformly dangerous substance.”

The case is McCaffrey v. Conant, filed in U.S. District Court for the Northern District of California. The defendants named in the suit are the key federal officials involved in drafting and implementing the Clinton administration strategy.

The national ACLU filed the initial lawsuit in January 1997, along with the ACLU of Northern California, the Lindesmith Center, New York-based drug policy group, and attorneys with the San Francisco firm of Altshuler, Berzon, Nussbaum, Berzon & Rubin.

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