Ganja' Case

Medical Marijuana Cases: Conant v. Walters
What does Conant mean for doctors and health care professionals?
Doctors CAN:
Discuss, fully and candidly, the risks and benefits of medical marijuana with patients.
Recommend (or Approve, Endorse, Suggest, or Advise, etc.), in accordance with their medical judgment, marijuana for patient use.
Record in their patients’ charts discussions about and recommendations of medical marijuana.
Sign a government form or otherwise inform state or local officials that they have recommended medical marijuana for particular patients.
Testify in court or through written declaration about recommending medical marijuana for a certain patient.
Educate themselves about the medical benefits of marijuana, its various clinical applications, and different routes of ingestion.
Doctors CANNOT:
Prescribe medical marijuana. This includes writing a recommendation on an Rx form.
Assist patients in obtaining marijuana.
Cultivate or possess marijuana for patient use.
Physically assist patients in using marijuana.
Recommend marijuana without a justifiable medical cause.
Conant v. McCaffrey is, at its core, a case about doctors’ ability to give advice and recommendations to patients suffering from serious and debilitating illnesses. In October 2003, the Unites States Supreme Court let stand a ruling by the Ninth Circuit Court of Appeals permitting physicians to recommend marijuana to patients whom they believe might medically benefit from its use. Conant v. Walters, 309 F.3d 629 (2002). Thus ended the seven-year dispute between the federal government and physicians and patients over the freedom to discuss medical marijuana use. This decision is in concordance with a lower court’s rulings which, since 1997, have upheld the right of physicians (and patients) to speak openly and candidly about marijuana’s potential risks and its therapeutic benefits, and have made clear that physicians may recommend medical marijuana to patients free from federal threats or interference.
This decision concludes a protracted dispute which began immediately after California enacted Proposition 215 in 1996. On January 14, 1997, a group of prominent physicians and seriously ill patients filed suit in federal court claiming that the federal government violated their Constitutional Rights by threatening to sanction - even criminally prosecute - physicians who recommend that patients use medical marijuana. Named as defendants were high-ranking government officials in the Clinton Administration who repeatedly issued such threats since the passage of the voter initiatives in November 1996 in California and Arizona: Drug Czar General Barry McCaffrey, Attorney General Janet Reno, Secretary of Health and Human Services Donna Shalala, and Director of the Drug Enforcement Administration Thomas Constantine. (In court papers, these officials have been replaced with their counterparts in the Bush Administration; the case is now cited as Conant v. Walters). The plaintiffs are a group of prominent physicians and patients who are represented by the San Francisco law firm of Altshuler, Berzon, Nussbaum, & Rubin, The Drug Policy Alliance, and the ACLU.
In addition, four medical organizations, the California Academy of Family Physicians, Gay & Lesbian Medical Association, Marin Medical Society and the San Francisco Medical Society, filed a friend-of-the-court brief on behalf of the plaintiffs in federal district court.
On April 30, 1997, federal district court judge Fern Smith, after hearing oral argument, issued a preliminary injunction prohibiting federal officials from threatening or punishing physicians for recommending medical marijuana to patients suffering from HIV/AIDS, cancer, glaucoma, and/or seizures or muscle spasms associated with a chronic, debilitating condition. According to Judge Smith, "[t]he First Amendment allows physicians to discuss and advocate medical marijuana, even though use of marijuana itself is illegal."
The court went on to observe:
In seeking to restrict what doctors may legally say to their patients concerning the use of medical marijuana, the government seeks to regulate physician-patient dialogue based on the content of that dialogue. 'It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.' . . . The government's statutory authority to regulate [the distribution and possession of drugs] . . . does not allow the government to quash speech about it . . . The government's fear that frank dialogue between physicians and patients about medical marijuana might foster drug use . . . does not justify infringing First Amendment freedoms.
The government chose not to appeal Judge Smith's preliminary injunction.
On September 7, 2000 Judge William Alsup of the federal district court issued a Permanent Injunction against the federal government, blocking it from revoking physician's licenses, and prohibiting the government from initiating investigations against doctors who recommend marijuana to their patients.
On June 20, 2001 the government filed its brief in the United States Court of Appeals for the Ninth Circuit challenging the permanent injunction. The plaintiff physicians and patients filed their opposition brief on August 31, 2001. In addition, two friends-of-the-court briefs were filed by prominent organizations in support of the physicians and patients. One amicus brief, filed by the American Public Health Association and others discusses the medical and scientific underpinnings of the therapeutic benefits of marijuana. That brief was prepared by the prestigious law firm Latham & Watkins. The other amicus brief was filed by the California Medical Association and others and argues that the sanctity of the physician-patient relationship is violated by the government's threats to revoke the DEA licenses of physicians for "recommending" medical marijuana treatment to their patients. That brief was prepared by the venerable D.C. law firm Jenner & Block.
On October 29, 2002, the Ninth Circuit Court of Appeals unanimously upheld the right for doctors to recommend marijuana to their patients. The Justices emphasized that it is the role of the states, not the federal government, to regulate the practice of medicine. In a concurring opinion, Judge Alex Kozinski cites extensive research on the efficacy of medicinal marijuana in treating seriously ill patients. For more about the decision, see the Drug Policy Alliance Press Release.
Now, with the U.S. Supreme Court upholding these past rulings, the Conant decision applies with full force and effect throughout the Ninth Circuit, which includes California, Arizona, Washington, Oregon, Nevada, Hawaii, Alaska, Montana and Idaho. Each of these states (except Idaho and Montana) has enacted laws permitting patients to posses and use medical marijuana when recommended or approved by a physician. (These state laws, however, do not change federal law that continues to criminalize marijuana possession, cultivation, and distribution.) Because the Constitution extends nationwide, the First Amendment principles at the heart of the Conant decision apply to physicians throughout the United States who wish to recommend marijuana to patients, though other federal circuit courts have yet to rule on the issue. The Drug Policy Alliance, in conjunction with the ACLU and the law firm of Altshuler, Berzon, represented the physicians and patients in their efforts to secure their legal rights.