Prosecuting
doctors who tell of marijuana's medical benefits is wrong!
The Justice Department
has decided that criminalizing marijuana -- a perfectly defensible
position -- also requires criminalizing talking about marijuana. That's
the upshot of the decision to appeal the ruling of the U.S. Court
of Appeals for the Ninth Circuit in Conant v. Walters, which barred
the government from prosecuting doctors who inform patients about
the benefits of medical marijuana.
Federal policy
on medical marijuana has grown more inflexible even as the scientific
community's view of its efficacy grows more fluid. Marijuana, like
other controlled substances, is available only in tightly regulated
situations. The government still funds some clinical trials for cannabis,
but that's about it; the guy on the corner selling weed in dime bags
is probably not covered by a federal grant.
In the mid-1990s,
several states passed laws permitting doctors to prescribe marijuana
to patients for whom other treatments had failed. In response, the
Clinton administration issued regulations clarifying that there were
no exceptions in the federal drug laws for medical use of marijuana,
and threatening doctors who prescribed it with revocation of their
license to prescribe drugs.
The U.S. Supreme
Court upheld that policy two years ago in United States v. Oakland
Cannabis Buyers' Co-op. The doctors behind the Conant case do not
challenge that result.
But the federal
response to the state medical marijuana laws also included a gag order,
first sought by the Clinton administration, that is the subject of
Conant. The gag rule was in the form of regulations barring doctors
from even recommending marijuana to their patients, even if the doctors
made no effort to prescribe. A federal district court immediately
enjoined enforcement of that part of the law, and the Clinton Administration
was content to let matters lie.
Meanwhile, in
1999, the National Institute of Medicine of the National Academy of
Sciences released its two-year long study of the issue, undertaken
at the request of the White House. It concluded that marijuana had
therapeutic value, and that for some fraction of patients, marijuana
was superior to other available treatments.
Fast forward to
the present. Recently, the judge who entered the original injunction
against the gag rule decided to make it permanent. The Justice Department
appealed to the Ninth Circuit -- and lost. Now the Justice Department
is taking the case to the Supreme Court.
Why the medical marijuana gag rule violates the First Amendment
Conant does not
involve doctors who prescribed marijuana. It doesn't involve doctors
who grew it or gave it away. At issue is simply the right of doctors
to say -- and patients to hear -- something nice about the medical
use of cannabis.
While the First
Amendment looks askance at most restrictions on speech, this particular
regulation is a three-time loser -- a viewpoint based restriction
on professional speech implicating a matter of intense public interest.
The law is a viewpoint-based
restriction because it punishes only doctors who recommend medical
marijuana -- that is, who tell patients marijuana might be good for
them. It does not punish doctors who disparage marijuana as a course
of treatment.
But the government
is not supposed to tell us what to think, which is why the law is
so hostile to restrictions on speech keyed to the viewpoint expressed
by the speaker. In a marketplace of ideas, such restrictions are the
equivalent of price controls. The government isn't supposed to set
the value attached to ideas, though; that's our job, and under the
First Amendment, our right.
The law also is
troubling because it interferes with a patient's right to hear what
her doctor has to say. The courts are highly solicitous of our right
to seek advice from professionals. Recently, in Legal Services Corp.
v. Velazquez, the Supreme Court struck down a law barring lawyers
in federally funded legal clinics from advising welfare recipients
about challenges to the welfare laws.
These rights are
no less urgent when it comes to medical professionals, and maybe even
more so. Courts have long recognized the importance of the doctor-patient
relationship. While the government protects our health by regulating
available courses of treatment, courts have traditionally refused
to interfere in what doctors and patients say to one another, and
will not assume, when reviewing such regulations, that doctors will
give medically unsound advice or that patients need to be protected
from what a medical professional views as the truth.
The law is particularly
quixotic given the government's continued conduct of clinical trials
involving marijuana. Under the policy, a doctor could probably be
punished for telling a patient about the mere existence of such trials.
Surely the Department of Justice will not be prosecuting those who
administer grants for the Department of Health and Human Services.
Why
the Justice Department's defense of the law is unconvincing
In the teeth of
all this First Amendment law, the Justice Department has defended
its position by arguing that a doctor's advice about medical marijuana
may just motivate someone to try to get his hands on some marijuana
-- in other words, to break the law.
Obviously, doctors
are not allowed to conspire with or aid and abet their patients in
getting marijuana, but all of that is already illegal. This policy
is aimed at something short of that -- a doctor who simply tells a
patient, "marijuana would help."
That statement
could, conceivably, motivate someone to go out and buy marijuana.
It could also motivate him to write his congresswoman, sign a petition,
or take out a subscription to High Times. None of these results is
any more likely than the other, and most of them are not only legal,
but at the core of what the First Amendment protects -- expressive
activity about matters of public concern, which is exactly what the
medical use of marijuana is.
The mere possibility
that a patient would go out and buy marijuana doesn't even approach
the exacting legal standards for criminalizing speech. The government
is allowed to restrict speech when it is likely to lead to illegal
conduct, but the connection -- between speech by one and action by
another -- must be very, very close. The old formulation required
that the speech present a "clear and present danger" --
something akin to shouting "attack!" to an already angry
mob.
While the law
in this area has been refined, it has not really changed. If the government
wants to limit speech because it may incite crime, then the speech
must be intended to do so and be very likely to, imminently, not at
some undefined point in the future. The fact that a doctor's statement
about the efficacy of marijuana may lead a patient to try to secure
some is not a set of facts remotely similar to those rare situations
in which this has served as a permissible basis for squelching speech.
In light of current
law, it is nearly impossible to imagine a Supreme Court opinion faithful
to our First Amendment jurisprudence that would leave in place the
government's gag order on doctors' speech regarding medical marijuana.
Such circumstances call for restraint -- not only by the judicial
branch, but also by the executive branch that appears before it.
Barton Aronson,
a FindLaw columnist, is an attorney in Washington, D.C.. Prior to
that, he was a prosecutor in Washington, D.C., and an assistant district
attorney in Massachusetts.
