California Doctors and Patients Sue McCaffrey, Reno, Shalala: Ban on Recommendation of Medical Marijuana Violates First Amendment

MEDICAL MARIJUANA February 1997

On January 13, a group of California doctors and patients sued senior Clinton Administration officials in U.S. District Court in San Francisco to seek "an injunction to protect California physicians from punishment by federal officials for the act of discussing or recommending medical marijuana for a patient." (Americans for Medical Rights, "Doctors, Patients File Class Action Suit to Block Federal Punishments for Medical Marijuana," press release, January 14, 1997; Harriet Chiang, "State Doctors Sue Over Medical Pot Rules," San Francisco Chronicle, January 15, 1997, p. A20; Jenifer Warren, "Doctors Sue Over Marijuana," Los Angeles Times (Washington Edition), January 15, 1997, p. B1; Tim Golden, "Marijuana Advocates File Suit to Stop U.S. Sanctions," New York Times, January 15, 1997, p. A10)

The suit was filed in response to warnings made on December 30, 1996 by top federal officials that doctors who recommend marijuana under California's new medical marijuana law could lose their federal licenses to prescribe controlled substances and in some cases be criminally prosecuted (See "Federal Officials Respond to New Medical Marijuana Laws," NewsBriefs, January 1997). The suit contends that those warnings force doctors to "censor and curtail their medical advice" to patients, violating their First Amendment right to free speech. "By effectively gagging physicians, defendants have intruded into the physician-patient relationship, an area traditionally protected from government interference," the plaintiffs said in their class-action lawsuit. Dr. Marcus Conant, an AIDS treatment specialist in San Francisco and lead plaintiff in the suit, said, "The medical community deserves more respect than having a retired General in Washington tell us how to practice medicine."

Defendants named in the suit include General Barry McCaffrey, director of the Office of National Drug Control Policy, DEA Administrator Thomas A. Constantine, U.S. Attorney General Janet Reno, and the Secretary of Health and Human Services, Donna E. Shalala. McCaffrey declined to comment on the lawsuit, but his office issued a statement that federal law against the possession and cultivation of marijuana would be enforced. "The aim of the Administration's policy is to ensure that no American gets the wrong message about the dangers of drugs and to ensure the safety and efficacy of all medicines available to the American public," the statement read.

Plaintiffs offered to settle the case if the government agreed to bar prosecution of doctors who discuss medical marijuana use in good faith with their patients. On February 7 in a letter from Justice Department lawyer Kathleen Muller, the offer was rejected by McCaffrey. "Doctors cannot evade the prohibitions of the Controlled Substances Act by claiming that they are merely providing their patients with 'recommendations' in accordance with their best medical judgement," wrote Muller (Eric Brazil, "Drug czar won't budge," Sn Francisco Examiner, February 9, 1997, p. C2).

A copy of the complaint can be found at the Lindesmith Center website at http://www.lindesmith.org/mmjsuit.html.