Courts prescribe free speech for doctors, patients

Sunday, October 26, 2003

Call it professional courtesy. Last week, the nine most powerful figures in the legal profession let stand a decision upholding the free-speech rights of the medical profession.

In rejecting a government appeal, the U.S. Supreme Court left intact federal court decisions that gave doctors the right to recommend the use of marijuana for medical purposes.

It was an important development, freeing up physicians to talk to seriously ill patients about treatment options without facing punishment by the federal government.

In recent years, there’s been a growing recognition that marijuana may have medical benefits for some patients. A yearlong study commissioned by the White House found that marijuana can help AIDS patients recover their appetites and ease chemotherapy-related nausea for cancer patients, among other benefits.

Support for the medical use of marijuana has led to voter initiatives in nine states. Alaska, Arizona, California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington have legalized the use of marijuana with doctor recommendations or prescriptions. Thirty-five states also have passed laws or resolutions acknowledging that marijuana may have medical value.

But the federal law has not changed. The federal government may prosecute anyone who purchases or distributes marijuana for any purpose. This means that a patient using marijuana in California won’t be prosecuted by the state but can be charged by the federal government.

In an effort to undo the states’ liberalization of marijuana laws, the federal government threatened revocation of federal prescription licenses of any doctors who recommend marijuana. This had the effect of nullifying the state laws because access to medical marijuana generally requires a doctor’s recommendation.

This put California’s doctors in an untenable position.

“By speaking candidly to their patients about the potential benefits of medical marijuana, they risk losing their licenses to write prescriptions, which would prevent them from functioning as doctors,” Circuit Judge Alex Kozinski wrote in a concurring opinion striking down the federal policy. “In other words, they may destroy their careers and lose their livelihoods.”

Kozinski and his colleagues in the 9th U.S. Circuit Court of appeals concluded that by punishing doctors for recommending the medical use of marijuana, the federal government violated the doctors’ First Amendment rights.

The court affirmed the importance of allowing a doctor to speak freely with a patient. If a physician believes, based on medical research and study, that a patient’s symptoms can be eased with medical marijuana, he or she has an absolute right to express that opinion without fear of penalty from the government.

Of course, the federal government can still prosecute a doctor who does anything more than talk or write a recommendation. A physician involved in buying or distributing marijuana could be charged.

The appellate court also pointed out that all Americans have a First Amendment right to petition the federal government for change of its laws, including decriminalization of marijuana on a national scale.

“To hold that physicians are barred from communicating to patients sincere medical judgments would disable patients from understanding their own situations well enough to participate in the debate,” wrote Chief Judge Mary M. Schroeder.

By not accepting this case for review, the U.S. Supreme Court has preserved the right of a physician to speak freely about medical options and has protected a state’s right to regulate its own medical community.

The decision also is a valuable reminder that the First Amendment doesn’t just protect the news media, protests and provocative speech. It also ensures the free flow of information to those who need it most.

The merits of prescribing pot may be debatable, but the importance of access to medical information is not. Sometimes free speech is the best medicine.

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