Biting at the gag - government policy on the use of medical marijuana

Reason, July, 1997 by Jacob Sullum

The Clinton administration's don't tell policy on medical marijuana - which threatens doctors who recommend the drug to their patients with loss of prescribing privileges, exclusion from Medicare and Medicaid, and criminal prosecution - has suffered a setback in federal court. On April 30, U.S. District Judge Fern Smith issued a preliminary injunction that prevents the government from acting on its threats while a lawsuit filed in January by a group of California doctors is pending.

Smith said the "plaintiffs have raised serious questions as to the constitutionality of the defendants' 'policy' regarding Proposition 215," the California initiative that approved medical use of cannabis. She noted evidence that "physicians have been censoring their discussions with patients about medical marijuana out of fear that the government will either prosecute them or take away their prescription licenses."

The Clinton administration has sent mixed signals about how it will treat such discussions. In mid-February, a Justice Department attorney said doctors could not escape punishment "by claiming that they are merely providing their patients with 'recommendations' in accordance with their best medical judgment." Two weeks later, an assistant secretary in the Department of Health and Human Services said, "Nothing in federal law prevents a physician, in the context of a legitimate physician-patient relationship, from merely discussing with a patient the risks and alleged benefits of the use of marijuana to relieve pain or alleviate symptoms."

A second lawsuit, filed on March 6 in the U.S. District Court for the District of Columbia, asserts that the federal policy on medical marijuana violates not only the First Amendment but also the Administrative Procedure Act, the Commerce Clause, the Ninth Amendment, and the 10th Amendment. The plaintiffs are Nevada entrepreneurs Durk Pearson and Sandy Shaw, who claim standing both as patients and as consultants to doctors who might recommend marijuana; the Life Extension Foundation; the American Preventive Medical Association; and several individual physicians.

Pearson et al. argue that the federal government has no authority to regulate intrastate prescription, distribution, and use of a medicine sanctioned by state law. They cite statutes in Connecticut, Virginia, and Louisiana, as well as California's initiative and another passed in Arizona that, among other things, permitted prescription of all Schedule I drugs, including marijuana.