Why the Court Should Continue to Protect Doctors and Patients From Government Censorship: Ban on Medical Marijuana Discussion Imposes Politics on Critical Patient Care

October 1, 2003 12:00 am

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ACLU Supreme Court Preview: 2003 Term

Statement of Graham Boyd, Director, ACLU Drug Policy Litigation Project


WASHINGTON – The American Civil Liberties Union is lead counsel in Walters v. Conant (03-40), a case concerning the First Amendment right of doctors to give advice and recommendations concerning medical use of marijuana to patients with cancer, HIV/AIDS, and other life-threatening diseases. The lower courts unanimously enjoined a federal policy that barred doctors from honestly advising often terminally ill patients about the risks and benefits of medical marijuana.

The implications of the case reach far beyond the medical use of marijuana, potentially threatening the ability of the medical profession to offer advice based on science and experience, rather than on federal dictates. In a reach for regulatory power that is without precedent in the medical profession, federal officials invoked their authority to prevent physicians’ distribution of certain drugs as grounds for imposing an official federal orthodoxy on medical advice. If allowed to stand, this policy could become precedent for federal officials imposing politics upon any issues of medicine, especially those that are controversial – a development that would seriously jeopardize patient care.

Physicians have a long history of recommending marijuana to patients. A 1990 Harvard survey of more than 2,000 oncologists found that 44 percent had recommended marijuana to cancer patients undergoing chemotherapy. During many decades of these physician recommendations, federal officials voiced no opposition to the practice of physicians communicating honest medical opinions to patients. Even as federal law prohibited physician prescription of marijuana, the federal government itself has operated a marijuana farm in Mississippi and has distributed marijuana to a small number of patients in its Compassionate Care program – a measure that recognizes the growing body of evidence that marijuana has legitimate medical uses for some patients. Indeed, as Judge Alex Kozinski noted in concurring with the appellate decision in this matter, the evidence and the widespread acceptance of marijuana within the medical field demonstrate that physicians could honestly and legitimately view recommendation of marijuana as medically sound advice in some circumstances.

The legitimacy of medical use of marijuana is reflected in the histories of the plaintiffs who bring this case. Among the nine plaintiff physicians, Dr. Marcus Conant stands out as one of the pioneers in addressing HIV and AIDS. As recounted in the book and film And the Band Played On, Dr. Conant recognized the pattern of AIDS transmission among gay men in San Francisco and initiated some of the first steps to control the growing epidemic. He went on to operate the nation’s largest HIV/AIDS practices, a group of physicians with responsibility for primary care of over 5,000 persons infected with HIV. His clinical experience has demonstrated the efficacy of marijuana in reversing the devastating effects of AIDS Wasting Syndrome, preventing the literal starvation of some of his patients.

Among the patients, Keith Vines is able to continue to work as an Assistant District Attorney only because marijuana helped stimulated his appetite as he faced death from AIDS Wasting. Another patient, Judith Cushner, is today battling a relapse of her breast cancer. Fighting the spread of cancer to her uterus and lymph nodes, she can tolerate chemotherapy only with the assistance of marijuana in quelling nausea and stimulating her appetite. Currently hovering around 85 pounds, she cannot afford to lose any more weight. Without marijuana, she would have to cease chemotherapy and would likely die.

Federal officials sought to impose their gag order on physician advice about medical marijuana following passage of California’s Compassionate Use Act, a ballot measure known at the time as Proposition 215. The California law does not contemplate that physicians distribute or prescribe marijuana. Rather, it recognizes the long tradition of recommending marijuana to appropriate patients, and then looks to these recommendations to create a new state-law defense. The Compassionate Use Act does nothing more than refer to the physician’s recommendation as a means of determining who qualifies as a legitimate patient exempt from the state’s laws that otherwise make marijuana use or cultivation a crime.

Frustrated by the passage of the Compassionate Use Act, federal officials vowed that the law would not stand. Unable to stop the law directly, federal officials set out to nullify it by ensuring that physicians would no longer recommend marijuana. The resulting policy threatened possible arrest and certain license revocation proceedings for any physician who “recommends” marijuana. Within days of announcement of this policy, physicians and patients brought this lawsuit and quickly obtained an injunction that has protected them throughout the litigation.

The legal issues in the case involve established First Amendment principles. The communication from a physician to a patient is protected speech. The physician’s right to speak and patients’ right to hear are equally implicated, though the urgency of the patients’ rights is especially grave in light of their need to receive full, uncensored medical advice as they make decisions in treating life-threatening diseases. Federal officials claim an interest in preventing marijuana use, but restrictions on speech cannot ordinarily be the means for doing so.

The government policy is all the more vulnerable under the First Amendment because of its vagueness. After first barring all “recommendations” of marijuana, the government then stated that “discussions” were permissible. Further statements suggested that discussions that painted marijuana in a favorable light might be viewed as a “recommendation,” and so remained forbidden. In the end, the line between permissible discussions and forbidden recommendations is so murky that physicians have no choice but to avoid the subject altogether. A vague form of censorship is tantamount to complete censorship.

Finally, the federal policy fails under traditional First Amendment review because it is viewpoint-based. Physicians can speak about marijuana only if they hew to the government’s own viewpoint. This form of speech restriction is viewed with particular suspicion by the courts.

Although the case pertains to a federal policy aimed only at California physicians, it may well have implications for other states with medical marijuana statutes. 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 one of those states comes under the jurisdiction of the appeals court that ruled unanimously in favor of the patients and doctors earlier this year.

A copy of the ACLU’s legal brief in the case, as well as profiles of our clients, can be found online at /court/courtmain.cfm.

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