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Conant v. Walters, __F.3d __ (9th Cir. 2002) (filed October 29, 2002); cert.denied __U.S. __ (October 14, 2003).

A district court injunction barred enforcement of a federal gag rule prohibiting physicians from prescribing marijuana. The appellate court agreed with the trial judge that the gag rule violates the First Amendment. On October 14, 2003, the United States Supreme Court issued a summary order denying certiorari, and thus declined without comment to take the case. As a result, physicians in California can now prescribe marijuana without fear of losing their federal license to prescribe drugs. They cannot, however, actually dispense marijuana to their patients.

Plaintiffs—patients suffering from serious illnesses, physicians licensed to practice in California who treat such patients, a patients’ organization and a physician’s organization—filed suit in 1997 to enjoin enforcement of a federal gag rule, prohibiting physicians from recommending or prescribing marijuana.

The federal Drug Enforcement Administration registers physicians, and in effect provides a federal license to prescribe controlled substances. In late 1996, a working group of Clinton Administration agencies, under the direction of “Drug Czar” Barry McCaffrey, promulgated a policy of threatening to revoke physicians’ licenses, in response to initiatives in Arizona and California decriminalizing the use of marijuana for limited medical purposes, and immunizing physicians from prosecution under state law for recommending or prescribing marijuana.

At the same time as this case was pending, there was litigation concerning whether a common law “medical necessity” exception could be implied in the federal Controlled Substances Act, which would allow a court to conform federal to state law. The Ninth Circuit held there was such an exception, but was overruled by the United States Supreme Court. United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001) rev’g 190 F.3d 1109 (9th Cir. 1999). Thus, there was no question that under federal law, if a physician dispensed marijuana to a patient, or actively participated in a scheme to procure marijuana for a patient, the physician either violated or “aided and abetted” a violation of federal drug law. This case was concerned, then, solely with whether a physician could communicate his or her medical opinion to a patient regarding the efficacy of marijuana to treat that patient’s illness.

The precedents were fairly clear. In the context of abortion rights, the Supreme Court has recognized that doctor-patient communications are protected by the First Amendment. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 884 (1992). The court has also recognized that, at least for lawyers, entering a regulated profession does not result in the surrender of rights of free speech and free press. See, e.g. Bates v. Arizona, 433 U.S. 350 (1977). The Ninth Circuit panel also pointed out that, in a recent case on “virtual child pornography” the Supreme Court held that the mere fact that speech may encourage illegal conduct is insufficient justification for laws restricting speech. See Ashcroft v. Free Speech Coalition, Inc., 535 U.S. __ (2002) (decided April 16, 2002). Also interesting, in light of the Supreme Court’s extreme activism in curtailing and controlling the reach of the federal government against the states, the Ninth Circuit noted that marijuana grown and used in California for medical purposes would have only negligible effect on interstate commerce, thus questioning the federal Congress’ authority to overrule state law on this matter.

In short, if the Supreme Court had to choose only one constitutional right to defend—and it sometimes appears that it has chosen to defend only one—that would be the right to free expression guaranteed by the First Amendment. The government’s gag rule clearly violates important rights to convey and hear medical information. Also, the newly vitalized doctrine of “federalism”, used to strike down laws protecting women and regulating guns, weighs heavily against this federal intrusion into the affairs of the sovereign state of California.

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