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Advocates of medical marijuana get a legal victory

Court keeps medical use of pot legal in Colo., 8 states

http://www.denverpost.com/Stories/0,1413,36~53~1698815,00.html

Wednesday, October 15, 2003
Karen Auge
Denver Post

The U.S. Supreme Court on Tuesday opened the door for doctors in Colorado and eight other states to recommend the use of marijuana for patients with cancer, AIDS and other conditions.

The high court declined to hear arguments by the Bush administration that doctors should lose their ability to write prescriptions for recommending or even discussing marijuana use with patients.

The 9th U.S. Circuit Court of Appeals had previously ruled that the sanctions would violate doctors' First Amendment rights to free speech.

In 2000, Colorado voters approved a state constitutional amendment allowing the use of marijuana for specific medical conditions.

Supporters of medical marijuana in Colorado and around the country cheered Tuesday's action.

"Hooray!" said Doreen Bishop, a Denver resident and recovering cancer patient who called marijuana a lifesaver for her. "That's such a relief," said Bishop, who has state permission to use the drug.

"I think a clear impact of the ruling in every state is doctors are now going to get the message that it is fine for them to recommend marijuana based on their own judgment," said Graham Boyd, an American Civil Liberties Union attorney who argued the case on behalf of doctors and patients in California.

But a spokesman for Colorado Attorney General Ken Salazar said that the Supreme Court hasn't yet laid down the law of the land. "You can read a lot into this, but until the Supreme Court actually issues an opinion, a circuit court is free - at its peril, perhaps - to decide differently," said the spokesman, Ken Lane.

Salazar is a steadfast opponent of Colorado's medical marijuana law. Soon after it took effect in 2001, his office issued a statement reminding doctors that they could face federal prosecution for recommending that patients use marijuana.

Some in Colorado predicted that Tuesday's Supreme Court action might ease the fears of doctors who have been reluctant to put their signature on the form the state requires to approve marijuana use, but others said patients haven't shown much interest in the drug.

Alaska, Arizona, Hawaii, Maine, Nevada, Oregon, California and Washington, along with Colorado, have laws that allow people with certain medical conditions to use marijuana with a doctor's authorization.

In Colorado, 280 people have received state permission to smoke marijuana to relieve symptoms of glaucoma, cancer, AIDS, multiple sclerosis, chronic pain, seizures and other conditions.

Altogether, 340 people have applied for the state certificate, said Gail Kelsey, who oversees the medical marijuana program for the state health department.

"I can tell you the calls I've received from patients indicate that doctors remain somewhat unwilling to sign the form for fear of federal prosecution."

But Dr. Paul Bunn, director of the University of Colorado's cancer center and a lung-cancer specialist, said he wouldn't hesitate to sign the state forms if a patient wanted marijuana. So far, none have asked for it, he said.

Dr. Steven Johnson, director of University of Colorado Hospital's HIV/ AIDS clinic, said several patients have asked him to sign the form.

"We're essentially state employees, so we've felt reluctant to provide the authorization. Of course, authorization is not a prescription, it's essentially a certificate saying they have AIDS or cancer or whatever," Johnson said.

Some of his patients have gone to other doctors for the recommendations, he said.

Tuesday's Supreme Court action "I think will ease the fears of doctors in general," he said. "But what it means for our own group here at the university remains to be seen."

Bunn said patients have options besides marijuana for easing the nausea of chemotherapy or fighting the loss of appetite and wasting effect of AIDS. Marinol, a legal derivative of marijuana, is one of those alternatives, he said.

Dr. Bill Wright, associate medical director for Kaiser Permanente's Colorado region, said a quick poll of Kaiser doctors found that few physicians had signed the recommendations the state requires, and few had been asked.

"But as a physician, I would say what I appreciate about the ruling is that it preserves the patient-physician relationship," Wright said.

The ACLU brought the suit to stop enforcement of a policy, enacted by the Clinton administration, that would punish doctors who recommend marijuana use.

The ACLU argued that the policy violated doctors' free speech rights, and the 9th Circuit Court of Appeals agreed.

But in asking the Supreme Court to review that decision, Solicitor General Theodore Olson said that "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. It is the conduct of the practice of medicine. As such, it is subject to reasonable regulation."
 

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