Federal Government Must Keep Hands Off California Doctors Who Recommend Medical Marijuana

Federal officials may not sanction California doctors who recommend marijuana to their patients, a federal judge in San Francisco ruled Wednesday. U.S. District Judge Fern Smith issued a preliminary injunction barring the Justice Department from taking any punitive actions against physicians — including criminal prosecution or withdrawal of prescription licenses — after negotiations broke down between area doctors and Justice Department officials. The negotiations were ordered by Smith in April to settle a lawsuit filed by California physicians seeking an injunction to prevent federal officials from sanctioning doctors who recommend the medical use of marijuana to their patients in compliance with state law.

“The government’s fear that frank dialogue between physicians and patients about medical marijuana might foster drug use … does not justify infringing First Amendment,” Judge Smith wrote in a 43-page order. “It is important to recognize what this case is about. It is not about doctors prescribing, growing, or distributing marijuana; nor is it about giving free rein to patients to make massive purchases of marijuana for distribution. Instead this case is about the ability of doctors, on an individualized basis, to give advice and recommendations to bona fide patients suffering from serious, debilitating illnesses regarding the possible benefits of personal, medical use of small quantities of marijuana.”

Graham Boyd, Esq., one of the lead attorneys for the plaintiffs called the ruling a “tremendous victory.”

“I think the judge hammered the federal government for a policy of threatening doctors and for interfering with patients’ health care,” he said. Boyd added that the government’s attorneys will most likely appeal the ruling — possibly all the way to the Supreme Court — but predicted that the outcome will be the same.

“The problem is, they have a very weak goal to begin with,” he said. “They want to muzzle doctors … and that runs directly into the First Amendment.”

Dave Fratello, spokesman for Americans for Medical Rights (AMR), praised Smith’s ruling. “Drug Czar Barry McCaffrey and the DEA are paying a price today for designing an unconstitutional policy to thwart Prop. 215. Today’s ruling is a huge victory for the rights of physicians and patients, and for the authority of voters to make important policy decisions.” Fratello also announced that AMR will begin offering a free informational brochure about the implications of Judge Smith’s ruling to patients and other interested parties who call theft toll-free number: l-888-YES-4-215.

It is yet to be determined what effect, if any, Smith’s decision may have on a second federal lawsuit filed in U.S. District Court for the District of Columbia on behalf of a group of physicians, health organizations, and patients challenging the administration’s refusal to allow physicians to prescribe or recommend marijuana in states that permit them to do so. Plaintiffs seek a declaratory judgment that the federal prohibition violates the First, Ninth, and Tenth Amendments and the Commerce Clause of the United States Constitution. Plaintiffs also seek a declaratory judgment that those aspects of federal policy that terminate a physicians participation in federal programs such as Medicaid and Medicare, and revoke their DEA drug registrations authorizing them to prescribe controlled drugs, violate the Administrative Procedure Act. The plaintiffs request that the court enjoin the federal government from enforcing its policy against doctors and patients.

All pleadings in the Washington D.C. suit must be turned in by June 27 and a decision is expected shortly thereafter.

For more information on Judge Smith’s ruling, please contact either attorney Graham Boyd of San Francisco at (415) 421-7151 or Dave Fratello of Americans for Medical Rights at (310) 394-2952. For more information regarding the Washington D.C. federal lawsuit, please contact the law firm of Emord & Associates at (202) 466-6937 or Berliner, Corcoran, & Rowe at (202) 293-5555. For additional information, please contact R. Keith Stroup, Esq. of NORML at (202) 483-5500.