Jewish World Review Oct. 17, 2003 / 21 Tishrei 5764
So long to a misguided gag rule on the medicinal use of marijuana
It was a small step for the U.S. 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 dangerous federal gag rule to keep the medicinal use of marijuana illegal, even when states want to legalize the drug.
The rule prevented doctors from recommending marijuana to their ill patients or even talking about the medicinal benefits of the weed.
Had the Supreme Court decided to hear the case, it would have had a golden opportunity to rip the innards out of laws passed by various states 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 what is reputedly the most 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 reducing 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 now free 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 marijuana remains illegal under federal law, which has caused some interesting legal wranglings. Arizona, for example, passed a marijuana legalization law in 1996 but, unlike in the other states, it has not been enforceable because it stipulates a doctor's "prescription," which is regulated by federal law.
The U.S. Supreme Court, in its wisdom, declined to be persuaded by Solicitor General Theodore 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 to ease the pain of an illness.
It is risky to read too much into any decision by the Supreme Court. Sometimes, for example, the justices will take a pass on an appeal but decide to hear a similar case later that is brought on different grounds.
But considering the strong leanings in favor of states' rights by Chief Justice William Rehnquist and some others on this court, it is not hard to understand why the justices decided to err on the side of free speech, public health and patient-doctor privacy. Good for the justices.
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 Rosenthalcase. He was convicted 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 Rosenthal's attorney to inform the jury that 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 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 Barney Frank (D-Mass.) and libertarian Dana Rohrabacher (R-Calif.). Unfortunately, the legislation languishes. Polls tend to show a large majority of Americans support allowing marijuana for medicinal 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.
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