Suit Seeks to Bar U.S. Sanctions for Prescribing Pot

SACRAMENTO — A group of doctors and patients filed a lawsuit Tuesday to block the federal government from punishing physicians who recommend marijuana for sick people in their care.

The suit, filed in federal court in San Francisco, is a response to Clinton Administration plans to fight implementation of California’s medical marijuana initiative, approved by voters in November.

Under the initiative, which appeared on the ballot as Proposition 215, patients with cancer, AIDS and a variety of other illnesses may legally grow and smoke marijuana with a recommendation from their doctors.

Last month, however, the federal government warned that doctors who make such recommendations could face criminal charges and lose their authority to write prescriptions.

In the class-action lawsuit unveiled Tuesday, doctors said such punishment would be a violation of their free speech rights. They argue that discussions between doctors and patients are protected by the 1st Amendment and that government efforts to gag physicians are unconstitutional.

“When a physician goes into the exam room with a patient and closes the door, the discussion they have should not be encumbered by some government drug czar sitting there and threatening punitive action,” said Dr. Marcus Conant, a well-known San Francisco AIDS specialist who is a plaintiff in the suit.

Graham Boyd, a lawyer for the physicians, agreed.

“The U.S. Supreme Court has said that the government may not bar physicians from discussing contraception or abortion, both controversial topics in their day,” Boyd said. “By the same logic, federal officials may not use controversy over marijuana as an excuse to intrude into the sanctity of the physician-patient relationship.”

Retired Gen. Barry R. McCaffrey, the White House director of drug policy, was unavailable for comment. But his office issued a statement declaring that the administration would continue to enforce federal drug laws, which make it a felony to possess or grow marijuana.

Known as the Compassionate Use Act, Proposition 215 was approved by 56% of California’s voters. Supporters called it an effort to help the ill obtain marijuana to relieve nausea, chronic pain and other maladies. Critics called it one step down the path toward legalization of drugs.

Marijuana’s benefits as medicine have been debated for years. Used as a battlefield painkiller during the Civil War, the drug underwent a renaissance of interest in the late 1980s among AIDS activists who found that it helped counter “wasting syndrome,” which causes debilitating weight loss in HIV-positive patients.

In interviews Tuesday, Conant and other doctors said the administration’s threats have made them censor their recommendations to patients who might be candidates for medicinal marijuana.

“I have several patients who have requested it to help relieve their suffering,” said Dr. Arnold Leff, a Santa Cruz physician who has seen marijuana help some of his AIDS patients over the past two years. “But there is this fear that if I do so, the federal government will turn their war on drugs against me.”

In Sacramento, AIDS specialist Dr. Neil Flynn is also anxious. Over the last year, he has written letters recommending marijuana to five patients experiencing debilitating nausea and wasting syndrome.

“I am a bit uncomfortable, because if they were looking for a test case, they could come after me,” said Flynn, also a plaintiff in the lawsuit. Despite his uneasiness, Flynn said he continues to suggest marijuana to those few patients who do not respond to any other treatment.

“I’m doing it, but I’m doing it with trepidation,” he said.

As the two sides prepared to do battle in court, the state’s largest club for the distribution of medical marijuana prepared to reopen in San Francisco today. The Cannabis Cultivators Club--its basement crowded with green plants--offers smokable pot as well as marijuana-containing pesto, brownies and other edible products.

Formerly known as the Cannabis Buyers Club, the operation was raided and closed down by the state attorney general during the campaign over Proposition 215. Last week, a judge cleared the way for its reopening, saying it was protected by the ballot initiative.