Federal Appeals Court Hears Arguments Today in Medical Marijuana Case with National Impact

April 8, 2002 12:00 am

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SAN FRANCISCO–In a case that will likely decide the fate of most of the nation’s medical marijuana laws, today the American Civil Liberties Union is urging a federal appeals court to uphold a ruling that the government cannot revoke the licenses of California doctors who recommend the medical use of marijuana to their patients.

At issue in Conant v. Walters, No. 00-17222 (formerly Conant v. McCaffrey), is whether the government has the power to issue a gag order on physicians who recommend medical marijuana based on the broad assertion that the “public interest” outweighs any First Amendment consideration.

“The government’s effort to gag physicians is blatantly unconstitutional,” said Graham Boyd, Director of the ACLU’s Drug Policy Litigation Project, who will argue the case before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. “Americans look to their doctors for honest, uncensored medical advice. A physician’s evaluation about the risks and benefits of medical marijuana constitutes protected speech under the First Amendment.”

“The Supreme Court has said that the government may not bar physicians from discussing contraception or abortion, both controversial topics in their day,” Boyd added. “By the same logic, federal officials may not use controversy over marijuana as an excuse to intrude into the sanctity of the physician-patient relationship.”

Since the case was first filed in 1997, nine states have approved medical marijuana ballot initiatives or laws (Alaska, Arizona, California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington) and others are considering measures. Except for Maine and Colorado, every state comes under the jurisdiction of the appeals court, making the case virtually a test of the viability of these laws.

“This case represents an egregious expansion of the government’s failed war on drugs into a war on doctors and their patients,” said Dan Abrahamson, Legal Director of the Drug Policy Alliance, which is co-counsel in the case along with the ACLU of Northern California and attorneys with the San Francisco firm of Altshuler, Berzon, Nussbaum, Rubin & Demain.

The groups represent both doctors who want to recommend medical marijuana, and their patients, many of them terminally ill, who believe they have the right to hear their doctors’ advice free from government interference.

“The federal government has threatened me and doctors like me with dire consequences for having an honest discussion about medical marijuana with my patients,” said Dr. Marcus Conant, a San Francisco specialist in AIDS treatment and the lead plaintiff in the lawsuit. “My colleagues and I have seen marijuana work to relieve nausea and stimulate appetite where other drugs fail, and scores of studies support our observations.”

A recent 10-state poll by the Lucas Organization shows strong bipartisan support for laws that protect medical marijuana users from arrest. Among the four states with existing medical marijuana laws, support for those laws ranges from 74.3 percent in Alaska to 78.6 percent in Nevada.

For more information on the case, including legal papers, profiles of the plaintiff doctors and patients and other background, go to http://archive.aclu.org/issues/drugpolicy/cases/conant/

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