cannabisnews.com: Smoky Battleground Renewed in Federal Court





Smoky Battleground Renewed in Federal Court
Posted by FoM on August 11, 2000 at 07:23:56 PT
By Katie Szymanski
Source: Bay Area Reporter 
Nobody disputes the facts of what is a landmark legal case taking place in San Francisco: some California doctors recommend medical marijuana to patients. At issue, however, is whether what those doctors do is punishable by federal law. The federal government says yes, while the doctors and patients in the suit – operating under California's medical marijuana initiative Proposition 215 – say no. U.S. District Judge William Alsup will decide. 
It was exactly the scenario feared when voters first passed Proposition 215 in 1996. Not exempt from federal laws regarding illicit substances, the state may look the other way when in the company of grass, but Uncle Sam will not, or so said the threats from the Clinton administration four years ago. It was drug czar Barry McCaffrey who declared after the passage of Proposition 215 that any doctors who prescribed or recommended marijuana would lose their federal licenses to prescribe drugs, would not be eligible for Medicare and MediCal payments, and could face criminal prosecution. That led to Conant v. McCaffrey, a class action suit filed by Dr. Marcus Conant and others, seeking a permanent injunction that would protect doctors from such threats and their consequences. The plaintiffs won a preliminary injunction in 1997 that prohibited federal officials from threatening or punishing physicians for recommending medical marijuana to patients, because such threats squelch speech and therefore violate the First Amendment. Last Thursday, August 3, the parties returned to federal court in San Francisco to duke it out for the final ruling. The original preliminary injunction ruling against the government will either be extended or withdrawn. The class action suit, as stated by the plaintiffs' attorneys, including the American Civil Liberties Union of Northern California, "seeks a declaration that physicians and patients have the right, protected by the First Amendment to the U.S. Constitution, to communicate in the context of a bona fide physician-patient relationship, without government interference or threats of punishment, about the potential benefits and risks of the medical use of marijuana." For the federal government, that very same free speech means that a doctor is aiding and abetting a person in obtaining an illegal drug that has been proven "harmful." Interestingly, the government cited the Food and Drug Administration as a source that has documented the evils of marijuana, but plaintiff Conant worked on the FDA's report on Marinol – the marijuana-based medicine to treat weight loss and medical pain – and that report was favorable. Nevertheless, whether the United States can instill fear into doctor-patient discussions is the true issue, and both sides called for a summary judgment last week since neither disagree about the basic facts of the case. Plaintiff Conant is a longtime Bay Area HIV/AIDS specialist. He is joined in his suit by Dr. Debasish Tripathy, an oncologist specializing in breast cancer at the University of California at San Francisco Mount Zion Breast Care Center; Dr. Howard D. Maccabee, medical director of the Radiation Oncology Center in Walnut Creek; Dr. Stephen Follansbee, chief of staff at Davies Medical Center in San Francisco and medical director of the Institute for HIV Treatment and Research at Davies Hospital; Dr. Arnold Leff, a specialist in AIDS and geriatric medicine; and Dr. Neil Flynn, physician at the AIDS and Related Disorders Clinic at the University of California, Davis. Additionally, there are five patient plaintiffs who credit medical marijuana for their survival of serious illnesses after conventional drug therapies failed. In addition to McCaffrey, defendants include Secretary of Health and Human Services Donna Shalala and Attorney General Janet Reno. The case has been renewed on the heels of a recent federal court victory for California pot clubs whereby a United States judge ruled that potential harm to patients should have been considered before dispensaries were targeted for closure. Pot activists around the state are hoping that the judge in this case will follow that example. Contact: ebar logx.comPubdate: Thu, 10 Aug 2000Source: Bay Area Reporter (CA)Copyright: 2000 The Bay Area ReporterRelated Articles:The Federal Jihad Against Marijuanahttp://cannabisnews.com/news/thread6665.shtmlFighting Cheech & Chong Medicinehttp://cannabisnews.com/news/thread6533.shtmlCannabisNews Medical Marijuana Archives:http://cannabisnews.com/news/list/medical.shtml
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Comment #2 posted by dddd on August 11, 2000 at 19:14:02 PT
what else?
I am with Dr. Russo,in hoping for a high profile loss for uncle sam,,,,who is no longer considered a member of the family.I didnt even invite that traitor over for the fourth of July this year.I predict the gov. will lose this one,but I'll bet the "high profile",of the loss,will be strangely minimalized in the national media. The people who are behind this absurd ,senseless attack on this State,and its'voters,are becoming quite desperate. Notice how no one on the government side is named,or if they are, is availiable to explain themselves,or be held accountable for this waste of time,and money....Our taxes,are paying for these people to negate our votes,and further intrude on our rights,and freedom. It's like hiring a lawyer to prosecute yourself in court?............most peculiar....dddd
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Comment #1 posted by Ethan Russo, MD on August 11, 2000 at 09:26:38 PT:
Courts Decide
If there can be any consistency in the law whatsoever, and if the Constitution means anything, the answer here must be that free speech between doctor and patient be protected. Some jurisdictions tried to squelch physician discussion of abortion, and that was unacceptable as well. I am hoping for a very high profile loss for the government on this one. Their position is wrong, unlawful, mean-spirited and flies in the face of the common sense that our populace is beginning to demonstrate on the medical cannabis issue.
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