Good riddance to pot foes' bid to silence doctors

October 16, 2003|By Clarence Page

WASHINGTON - It was a small step for the Supreme Court, but one giant leap toward a sane drug policy.

I'm talking about the high court's refusal Tuesday to hear the Bush administration's appeal of a lower court ruling allowing doctors to recommend the medicinal use of marijuana to their patients.

Had the Supreme Court decided to hear the case, it would have had a golden opportunity to rip the innards out of laws various states have already passed to legalize or decriminalize the medicinal use of marijuana.

But it didn't. Instead, this conservative Supreme Court wisely decided to reject the Bush administration's appeal of a ruling that came from the most reputedly liberal appeals court, the San Francisco-based 9th U.S. Circuit Court of Appeals.

In the case of Conant vs. Walters, Dr. Marcus Conant, a San Francisco AIDS specialist, challenged the federal policy. He and other doctors argued quite reasonably that they should be as free to discuss the pros and cons of marijuana as they are to talk about red wine to reduce the risk of heart disease - or about "vitamin C, acupuncture or chicken soup."

The 9th Circuit agreed. Although doctors still can be punished if they actually help patients obtain the drug, at least they are free now to discuss the subject.

So far, eight states have laws legalizing marijuana for patients with physician recommendations: Alaska, California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington. Thirty-five states have passed legislation that reduces penalties for medicinal use of marijuana or otherwise recognizes medicinal value.

But the sale or use of marijuana remains illegal under federal law, which has caused some interesting legal wranglings. Arizona, for example, passed a legalization law in 1996, but, unlike the others, it has not been enforceable because it stipulates a doctor's "prescription," which is regulated by federal law, instead of a "recommendation," which the Conant vs. Walters decision freed from federal restriction.

The Supreme Court, in its wisdom, declined to be persuaded by Solicitor General Theodore B. Olson's argument that this was a law enforcement issue, not a free speech issue. "The provision of medical advice - whether it be that the patient take aspirin or vitamin C, lose or gain weight, exercise or rest, smoke or refrain from smoking marijuana - is not pure speech," he said in court papers. "It is the conduct of the practice of medicine. As such, it is subject to reasonable regulation."

If so, the high court does not appear to have found a compelling reason for "reasonable regulation" to include banning doctors from freely discussing marijuana among other options to which a patient might turn.

It's risky to read too much into any decision by the Supreme Court to take a pass on hearing an appeal. Sometimes, for example, the court decides to hear a similar case later brought on different grounds.

But given the longstanding record of Chief Justice William H. Rehnquist and others on the court of strong leanings in favor of state's rights, it's not hard to understand why the justices decided to err on the side of free speech, public health and privacy in leaving the highly personal matter of doctor-patient consultations to the states. Good for them.

Now they should take the next step: Get the federal government off the backs of state medicinal marijuana laws. Then we might avoid atrocities like the Ed Rosenthal case. He was convicted earlier this year under federal law of growing and distributing cannabis, even though he was licensed by the city of Oakland to do so under California's medical marijuana statute.

The judge in his case put a gag on attempts by Mr. Rosenthal's attorney to inform the jury that Mr. Rosenthal's actions were legal under state law. After his conviction, seven jurors took the extraordinary step of publicly repudiating their own verdict and apologizing to Mr. Rosenthal. The judge sentenced him to one day in jail and the lifelong title of "convicted felon."

Meanwhile, back here in Washington, House bills to leave the medicinal marijuana issue to the states have pulled together sponsors as diverse as liberal Democrat Barney Frank of Massachusetts and libertarian Republican Dana Rohrabacher of California. Unfortunately, the legislation languishes. Polls tend to show a large majority of Americans support allowing marijuana for medicinal use, although not necessarily for recreational use.

But progress is held up by a vocal minority of anti-pot zealots who would rather treat marijuana as a matter of crime and punishment instead of public health.

Clarence Page is a columnist for the Chicago Tribune, a Tribune Publishing newspaper, and appears Thursdays in The Sun.

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