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Supreme Court Refuses Government Appeal on Medical Marijuana Advice by Doctors
Supreme Court Refuses Government Appeal on Medical Marijuana Advice by Doctors

Surprising some observers, the U.S. Supreme Court on Oct. 14, 2003, refused to review a 9th Circuit Court of Appeals decision in a California case1 affirming physicians’ rights to recommend medical marijuana (Cannabis sativa L., Cannabinaceae) to their patients. The high court rarely refuses to hear government appeals of lower court decisions.

California passed the first law in the United States legalizing cannabis for medical use when recommended by a doctor (Proposition 215) in 1996. The Clinton Administration threatened doctors who recommended cannabis with losing their federal Drug Enforcement Administration (DEA) licenses to prescribe medications, exclusion from Medicare and Medicaid programs, and even criminal charges if they helped patients obtain marijuana. Several California physicians and patients sued to protect physicians’ rights to free speech within the doctor-patient relationship. Friend of the court briefs – submitted by such groups as the California Medical Association, American Academy of Pain Medicine, and the Society of General Internal Medicine – compared physicians’ discussing cannabis with advice to drink red wine to reduce risk of heart disease, take vitamin C or drink chicken soup for colds, or to try acupuncture.2

The government argued that the case was about public health, not free speech, claiming 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."

The physicians and patients won at all levels, culminating in a unanimous Circuit Court decision in Oct., 2002: "An integral component of the practice of medicine is the communication between doctor and patient."3

Graham Boyd of the American Civil Liberties Union’s Drug Policy Litigation Project argued the case in the 9th Circuit. ACLU staff attorney and co-counsel Ann Brick commented, after the decision was allowed to stand, "The First Amendment protects the right of doctors to express their opinions about the value of medical marijuana not just when they are giving a speech but when they are giving advice to individual patients. It is the patients who will benefit mostly from today’s announcement."4

The Bush administration, maintaining its position that cannabis has no medical value and may not be legally grown, sold, or possessed for any purpose, had appealed to the top court. Cannabis is classified as a "Schedule I" prohibited drug, along with heroin and LSD. Responding to the announced nonintervention, John Walters, director of the White House Office of National Drug Control Policy, pointed out that it concerned the doctor-patient relationship, and not any medical benefits of cannabis, adding that public officials and medical professionals must "continue to protect the health of American citizens" from cannabis.5

Various studies, many conducted in England, and a wealth of anecdotal testimony, indicate that cannabis can relieve pain,6-12 stimulate appetite,13,14 prevent nausea,15 and reduce spasticity16 in a wide range of ailments from AIDS to multiple sclerosis, and in chemotherapy treatment for cancer.17-20 It is an efficacious treatment for glaucoma21 and may help lower blood pressure, through the same mechanism of action. All of these uses, except reducing blood pressure, are recognized by all or most of the state medical marijuana provisions now in effect. A May 2003 article in The Lancet Neurology discussed the rapidly expanding body of knowledge about cannabinoids – the primary active constituents of cannabis – and research ramifications. "That we are only just beginning to appreciate the huge therapeutic potential of this family of compounds is clear ... There is increasing experimental evidence of a neuroprotective effect of cannabinoids."22-24

Medical marijuana activists hailed the Supreme Court’s refusal to review the Circuit Court’s decision. The Drug Policy Alliance, which provided financial assistance for the court battle, called the non-action "a major victory."2 Rob Kampia, Executive Director of the Marijuana Policy Project, a Washington, D.C.-based lobbying group, said, "By deciding not to hear this case, the Supreme Court has eliminated any doubt that states have the right to protect medical marijuana patients under state law, and that physicians have the right to give patients honest advice … The Supreme Court has recognized that doctors and patients have a right to honestly discuss potential treatments, including marijuana, and (that) the First Amendment forbids the federal government from intruding into those conversations."25

Nine states allow medical marijuana use (Alaska, Arizona, California, Colorado, Hawaii, Maine, Nevada, Oregon, and Washington; also, Maryland provides an affirmative legal defense for people arrested while using cannabis medically). Because all of them require at least a physician’s recommendation, if the high court had accepted the case, and ruled in favor of the government, it would have nullified the states’ medical marijuana laws. "Now," the Drug War Chronicle said, "the federal government will have to find another means of suppressing the medical marijuana movement."2

On a similar wavelength, the Los Angeles Times editorialized on Oct. 15, "T(he) ruling, even if it fails to budge the Drug Enforcement Administration on the Schedule I classification, should end the Bush administration’s intimidation campaign ... Ideally, it would prompt the administration to respect Proposition 215 ... However, the DEA could also decide that because the court has undermined its ability to prosecute doctors, it should escalate its crackdowns on cannabis clubs."26

That possibility is lent weight by the fact that in a 2001 case involving medical marijuana clubs,27 the Supreme Court ruled for the government. In a perhaps unintentionally sarcastic remark, DEA spokesman Tom O’Brien cited that case in response to questions about recent raids on medical cannabis users in Oregon, saying, "Marijuana is still ... an illegal substance. When’s the last time you went to a doctor and he said, ‘Here, take two joints and go home. This will make you feel better.’"28

Meanwhile, fueling the vision that California patients, at least, may look forward to such physician services, lame duck governor Gray Davis signed SB 420 into law on Oct. 14, creating a state-issued identification card for medical marijuana users and caregivers, and spelling out how much cannabis they may grow and possess.29 And yet another California lawsuit, this one brought by patients and caregivers seeking protection from police raids or arrests for growing or possessing cannabis, was argued before the 9th Circuit Court on Oct. 7, 2003.30 A decision may take months.

Mariann Garner-Wizard is a freelance writer and grants administrator for a small nonprofit foundation. She regularly contributes to ABC’s HerbCliptm.


1. Conant v. Walters, US Supreme Court No. 03-40, formerly Conant v. McCaffrey, 2000 WL 1281174, 1[N.D. Cal. 2000].

2. Smith P. Supreme Court upholds doctors’ right to recommend medical marijuana. Drug War Chronicle [serial online]. Oct 1, 2003. Available from URL: .

3. Conant v. Walters, formerly Conant v. McCaffrey, 2000 WL 1281174, 1[N.D. Cal. 2000].

4. The American Civil Liberties Union of Northern California. Supreme Court lets stand ruling protecting doctors and patients from government censorship [press release]. San Francisco: American Civil Liberties Union; Oct 14, 2003. Available from URL: <>.

5. Kravets D. Supreme Court clears way for medical pot. Macon Telegraph (Associated Press) Oct 14, 2003. Available from URL: <>.

6. Russo E. Cannabis for migraine treatment: The once and future prescription? An historical and scientific review. Pain 1998;76(1-2):3-8.

7. Cannabinoids in pain management. Study was bound to conclude that cannabinoids had limited efficacy. BMJ 2001;323(7323):1249-50; discussion 1250-1.

8. Russo E. Hemp for headache: An in-depth historical and scientific review of cannabis in migraine treatment. Journal of Cannabis Therapeutics 2001;1(2):21-92.

9. Wade DT, Robson P, House H, Makela P, Aram J. A preliminary controlled study to determine whether whole-plant cannabis extracts can improve intractable neurogenic symptoms. Clinical Rehabilitation 2003;17:18-26.

10. Notcutt W. Cannabis in the treatment of neuropathic pain. In: Medicinal Uses of Cannabis and Cannabinoids. Whittle BA, Guy GW, Robson P, eds. London: Pharmaceutical Press; 2003.

11. GW Pharmaceuticals. GW announces positive results from each of four phase three clinical trials [press release]. London: GW Pharmaceuticals; Nov 5, 2002. Available from URL: < _nov_02.html>.

12. Marijuana Policy Project. Medical marijuana in liquid form heads for approval in Britain; natural marijuana extract helps MS, chronic pain patients [press release]. Washington, DC: Marijuana Policy Project; Mar 31, 2003. Available from:

13. Nelson K, Walsh D, Deeter P, Sheehan F. A phase II study of delta-9-tetrahydrocannabinol for appetite stimulation in cancer-associated anorexia. Journal of Palliative Care 1994:10(1):1418.

14. Abrams D I, Hilton JF, Leiser RJ, et al. Short-term effects of cannabinoids in patients with HIV-1 infection. A randomized, placebo-controlled clinical trial. Ann Intern Med 2003;139:258-66.

15. Tramèr MR, Carroll D, Campbell FA, Reynolds DJM, Moore RA, McQuay HJ. Cannabinoids for control of chemotherapy induced nausea and vomiting: quantitative systematic review. BMJ 2001 July 7;323:1-8.

16. Meinck HM. Effects of cannabinoids on spasticity and ataxia in multiple sclerosis. Journal of Neurology 1989:235.

17. Epstein J. Are Texans being denied access to a vital medicine? A scientific assessment of marijuana. Houston: Drug Policy Forum of Texas; 2002. Available from URL: <>.

18. Russo E, Mathre ML, Byrne A, et al. Chronic cannabis use in the compassionate investigational new drug program: an examination of benefits and adverse effects of legal clinical cannabis. Journal of Cannabis Therapeutics 2002;1(2):3-57.

19. Hilts PJ. After two-decade halt, marijuana research is set. The New York Times 200l Dec 15:A11.

20. Watson, SJ, Benson JA, Joy JE. Marijuana and medicine: assessing the science base. Arch Gen Psychiatry 2000;57:547-552.

21. Jarvinen T, Pate D, Laine K. Cannabinoids in the treatment of glaucoma. Pharmacol Ther 2002;95(2):203.

22. Baker D, Pryce G, Giovannoni G, Thompson AJ. The therapeutic potential of cannabis. The Lancet Neurology 2003 May;2(5):291-9.

23. Pankaj S. Never fear, cannabinoids are here. Nature 2002;418:488-9.

24. Marijuana: "The Aspirin of the 21st Century"? [research report]. Marijuana Policy Report, 2003 Summer;9(2):11.

25. Marijuana Policy Project. Supreme Court rejects Bush Administration attempt to gut medical marijuana laws [press release]. Washington, D.C.: Marijuana Policy Project; Oct 14, 2003. Available from: <>.

26. Anonymous. Unfettered Medical Advice [editorial]. Los Angeles Times, Oct 15, 2003:B12.

27. U.S. v. Oakland Cannabis Buyers Cooperative and J Jones, 00-151. US Supreme Court 2001.

28. Sabo M. Legal to Oregon, Illegal to Federal Agents. The Oregonian 2003 Oct 12. Available from URL: <>.

29. Fletcher E. Davis signs adjunct to medical pot law. Sacramento Bee Oct 14, 2003. Available from URL: <>.

30. Raich v. Ashcroft, 02-4872, N.D. Cal 2002.