OPINION
SCHROEDER, Chief Judge:
This is an appeal from a permanent
injunction entered to protect First Amendment rights. The
order enjoins the federal government from either revoking a
physician's license to prescribe controlled substances or
conducting an investigation of a physician that might lead
to such revocation, where the basis for the government's
action is solely the physician's professional
"recommendation" of the use of medical marijuana. The
district court's order and accompanying opinion are at
Conant v. McCaffrey, 2000 WL 1281174 (N.D. Cal. Sept. 7,
2000). The history of the litigation demonstrates that the
injunction is not intended to limit the government's ability
to investigate doctors who aid and abet the actual
distribution and possession of marijuana. 21 U.S.C. §
841(a). The government has not provided any empirical
evidence to demonstrate that this injunction interferes with
or threatens to interfere with any legitimate law
enforcement activities. Nor is there any evidence that the
similarly phrased preliminary injunction that preceded this
injunction, Conant v. McCaffrey, 172 F.R.D. 681 (N.D. Cal.
1997), which the government did not appeal, interfered with
law enforcement. The district court, on the other hand,
explained convincingly when it entered both the earlier
preliminary injunction and this permanent injunction, how
the government's professed enforcement policy threatens to
interfere with expression protected by the First Amendment.
We therefore affirm.
I. The Federal Marijuana Policy
The federal government promulgated its policy in 1996 in
response to initiatives passed in both Arizona and
California decriminalizing the use of marijuana for limited
medical purposes and immunizing physicians from prosecution
under state law for the "recommendation or approval" of
using marijuana for medical purposes. See Cal. Health &
Safety Code § 11362.5. The federal policy declared that
a doctor's "action of recommending or prescribing Schedule I
controlled substances is not consistent with the
Œpublic interest' (as that phrase is used in the
federal Controlled Substances Act)" and that such action
would lead to revocation of the physician's registration to
prescribe controlled substances. (1a) The policy relies on
the definition of "public interest" contained in 21 U.S.C.
§ 823(f), which provides:
In determining the public interest, the
following factors shall be considered: (1) The
recommendation of the appropriate State licensing board
or professional disciplinary authority. (2) The
applicant's experience in dispensing, or conducting
research with respect to controlled substances. (3) The
applicant's conviction record under Federal or State laws
relating to the manufacture, distribution, or dispensing
of controlled substances. (4) Compliance with applicable
State, Federal, or local laws relating to controlled
substances. (5) Such other conduct which may threaten the
public health and safety.
The policy also said that the DOJ and the HHS would send
a letter to practitioner associations and licensing boards
informing those groups of the policy. The federal agencies
sent a letter two months later to national, state, and local
practitioner associations outlining the Administration's
position ("Medical Leader Letter"). The Medical Leader
Letter cautioned that physicians who "intentionally provide
their patients with oral or written statements in order to
enable them to obtain controlled substances in violation of
federal law . . . risk revocation of their DEA prescription
authority."
II. Litigation History
Plaintiffs are patients suffering from serious illnesses,
physicians licensed to practice in California who treat
patients with serious illnesses, a patient's organization,
and a physician's organization. The patient organization is
Being Alive: People with HIV/AIDS Action Coalition, Inc. The
physician's organization is the Bay Area Physicians for
Human Rights. Plaintiffs filed this action in early 1997 to
enjoin enforcement of the government policy insofar as it
threatened to punish physicians for communicating with their
patients about the medical use of marijuana. The case was
originally assigned to District Judge Fern Smith, who
presided over the case for more than two years. After Judge
Smith received the parties' briefs, she issued a temporary
restraining order, certified a plaintiff class, denied the
government's motion to dismiss, issued a preliminary
injunction, awarded interim attorney's fees to plaintiffs,
and set the briefing schedule for discovery.
Judge Smith entered the preliminary injunction on April
30, 1997. It provided that the government "may not take
administrative action against physicians for recommending
marijuana unless the government in good faith believes that
it has substantial evidence" that the physician aided and
abetted the purchase, cultivation, or possession of
marijuana, 18 U.S.C. § 2, or engaged in a conspiracy to
cultivate, distribute, or possess marijuana, 21 U.S.C.
§ 846. Id. at 700. Judge Smith specifically enjoined
the "defendants, their agents, employees, assigns, and all
persons acting in concert or participating with them, from
threatening or prosecuting physicians, [or] revoking
their licenses . . . based upon conduct relating to medical
marijuana that does not rise to the level of a criminal
offense." Id. at 701. The preliminary injunction covered not
only "recommendations," but also "non-criminal activity
related to those recommendations, such as providing a copy
of a patient's medical chart to that patient or testifying
in court regarding a recommendation that a patient use
marijuana to treat an illness." Id. at 701 n.8.
The government did not appeal the preliminary injunction,
and it remained in effect after the case was transferred
more than two years later to Judge Alsup on August 19, 1999.
Judge Alsup in turn granted a motion to modify the plaintiff
class, held a hearing on motions for summary judgment,
granted in part and denied in part the cross-motions for
summary judgment, dissolved the preliminary injunction, and
entered a permanent injunction. The class was modified to
include only those patients suffering from specific symptoms
related to certain illnesses and physicians who treat such
patients. The permanent injunction appears to be
functionally the same as the preliminary injunction that
Judge Smith originally entered. It provides that the
government is permanently enjoined from:
(i) revoking any physician class member's DEA
registration merely because the doctor makes a
recommendation for the use of medical marijuana based on a
sincere medical judgment and (ii) from initiating any
investigation solely on that ground. The injunction should
apply whether or not the doctor anticipates that the patient
will, in turn, use his or her recommendation to obtain
marijuana in violation of federal law
Conant, 2000 WL 1281174, at *16.
In explaining his reasons for entering the injunction,
Judge Alsup pointed out that there was substantial agreement
between the parties as to what doctors could and could not
do under the federal law. Id. at *11. The government agreed
with plaintiffs that revocation of a license was not
authorized where a doctor merely discussed the pros and cons
of marijuana use. Id. The court went on to observe that the
plaintiffs agreed with the government that a doctor who
actually prescribes or dispenses marijuana violates federal
law. The fundamental disagreement between the parties
concerned the extent to which the federal government could
regulate doctorpatient communications without interfering
with First Amendment interests. Id. This appeal
followed.
III. DiscussionIt is important at the outset to observe
that this case has been litigated independently of
contemporaneous litigation concerning whether federal law
exempts from prosecution the dispensing of marijuana in
cases of medical necessity. The Supreme Court in that
litigation eventually held that it does not, reversing this
court. See United States v. Oakland Cannabis Buyers' Coop.,
532 U.S. 483 (2001), rev'g United States v. Oakland Cannabis
Buyers' Coop., 190 F.3d 1109 (9th Cir. 1999). When the
district court entered the permanent injunction in this
case, it pointed out that it was doing so without regard to
this Circuit's decision in the Oakland Cannabis
litigation.Conant, 2000 WL 1281174, at *15
n.7.
The dispute in the district court in this case focused on
the government's policy of investigating doctors or
initiating proceedings against doctors only because they
"recommend" the use of marijuana. While the government urged
that such recommendations lead to illegal use, the district
court concluded that there are many legitimate responses to
a recommendation of marijuana by a doctor to a patient.
There are strong examples in the district court's opinion
supporting the district court's conclusion. For example, the
doctor could seek to place the patient in a federally
approved, experimental marijuana-therapy program. Id. at
*15. Alternatively, the patient upon receiving the
recommendation could petition the government to change the
law. Id. at *14. By chilling doctors' ability to recommend
marijuana to a patient, the district court held that the
prohibition compromises a patient's meaningful participation
in public discourse. Id. The district court stated:
Petitioning Congress or federal agencies for redress of a
grievance or a change in policy is a timehonored tradition.
In the marketplace of ideas, few questions are more
deserving of free-speech protection than whether regulations
affecting health and welfare are sound public policy. In the
debate, perhaps the status quo will (and should) endure. But
patients and physicians are certainly entitled to urge their
view. To hold that physicians are barred from communicating
to patients sincere medical judgments would disable patients
from understanding their own situations well enough to
participate in the debate. As the government concedes, . . .
many patients depend upon discussions with their physicians
as their primary or only source of sound medical
information. Without open communication with their
physicians, patients would fall silent and appear
uninformed. The ability of patients to participate
meaningfully in the public discourse would be
compromised.
Id.
On appeal, the government first argues that the
"recommendation" that the injunction may protect is
analogous to a "prescription" of a controlled substance,
which federal law clearly bars. We believe this
characterizes the injunction as sweeping more broadly than
it was intended or than as properly interpreted. If, in
making the recommendation, the physician intends for the
patient to use it as the means for obtaining marijuana, as a
prescription is used as a means for a patient to obtain a
controlled substance, then a physician would be guilty of
aiding and abetting the violation of federal law. That, the
injunction is intended to avoId. Indeed the predecessor
preliminary injunction spelled out what the injunction did
not bar; it did not enjoin the government from prosecuting
physicians when government officials in good faith believe
that they have "probable cause to charge under the federal
aiding and abetting and/or conspiracy statutes." 172 F.R.D.
at 701.
The plaintiffs themselves interpret the injunction
narrowly, stating in their brief before this Court that,
"the lower court fashioned an injunction with a clear line
between protected medical speech and illegal conduct." They
characterize the injunction as protecting "the dispensing of
information," not the dispensing of controlled substances,
and therefore assert that the injunction does not contravene
or undermine federal law.
As Judge Smith noted in the preliminary injunction order,
conviction of aiding and abetting requires proof that the
defendant "associate[d] himself with the venture,
that he participate[ d] in it as something that he
wishe[d] to bring about, that he [sought] by
his actions to make it succeed." 172 F.R.D. at 700 (quoting
Cent. Bank of Denver, N.A. v. First Interstate Bank of
Denver, N.A., 511 U.S. 164, 190 (1994) (internal quotation
marks and citation omitted)). This is an accurate statement
of the law. We have explained that a conviction of aiding
and abetting requires the government to prove four elements:
"(1) that the accused had the specific intent to facilitate
the commission of a crime by another, (2) that the accused
had the requisite intent of theunderlying substantive
offense, (3) that the accused assisted or participated in
the commission of the underlying substantive offense, and
(4) that someone committed the underlying substantive
offense." See United States v. Gaskins, 849 F.2d 454, 459
(9th Cir. 1988). The district court also noted that
conspiracy requires that a defendant make "an agreement to
accomplish an illegal objective and [that he] knows
of the illegal objective and intends to help accomplish it."
172 F.R.D. at 700-01 (citing United States v. Gil, 58 F.3d
1414, 1423 & n.5 (9th Cir. 1995)).
The government on appeal stresses that the permanent
injunction applies "whether or not the doctor anticipates
that the patient will, in turn, use his or her
recommendation to obtain marijuana in violation of federal
law," and suggests that the injunction thus protects
criminal conduct. A doctor's anticipation of patient
conduct, however, does not translate into aiding and
abetting, or conspiracy. A doctor would aid and abet by
acting with the specific intent to provide a patient with
the means to acquire marijuana. See Gaskins, 849 F.2d at
459. Similarly, a conspiracy would require that a doctor
have knowledge that a patient intends to acquire marijuana,
agree to help the patient acquire marijuana, and intend to
help the patient acquire marijuana. See Gil, 58 F.3d at
1423. Holding doctors responsible for whatever conduct the
doctor could anticipate a patient might engage in after
leaving the doctor's office is simply beyond the scope of
either conspiracy or aiding and abetting.
The government also focuses on the injunction's bar
against "investigating" on the basis of speech protected by
the First Amendment and points to the broad discretion
enjoyed by executive agencies in investigating suspected
criminal misconduct. The government relies on language in
the permanent injunction that differs from the exact
language in the preliminary injunction. The permanent
injunction order enjoins the government "from initiating any
investigation solely on" the basis of "a recommendation for
the use of medical marijuana based on a sincere medical
judgment." Conant, 2000 WL 1281174, at *16. The preliminary
injunction order provided that "the government may not take
administrative action against physicians for recommending
marijuana unless the government in good faith believes that
it has substantial evidence of [conspiracy or aiding and
abetting]." 172 F.R.D. at 701.
[1] The government, however, has never argued
that the two injunctive orders differ in any material way.
Because we read the permanent injunction as enjoining
essentially the same conduct as the preliminary injunction,
we interpret this portion of the permanent injunction to
mean only that the government may not initiate an
investigation of a physician solely on the basis of a
recommendation of marijuana within a bona fide
doctor-patient relationship, unless the government in good
faith believes that it has substantial evidence of criminal
conduct. Because a doctor's recommendation does not itself
constitute illegal conduct, the portion of the injunction
barring investigations solely on that basis does not
interfere with the federal government's ability to enforce
its laws.
[2] The government policy does, however, strike
at core First Amendment interests of doctors and patients.
An integral component of the practice of medicine is the
communication between a doctor and a patient. Physicians
must be able to speak frankly and openly to patients. That
need has been recognized by the courts through the
application of the common law doctor-patient privilege. See
Fed. R. EvId. 501.
[3] The doctor-patient privilege reflects "the
imperative need for confidence and trust" inherent in the
doctor-patient relationship and recognizes that "a physician
must know all that a patient can articulate in order to
identify and to treat disease; barriers to full disclosure
would impair diagnosis and treatment." Trammel v. United
States, 445 U.S. 40, 51 (1980). The Supreme Court has
recognized that physician speech is entitled to First
Amendment protection because of the significance of the
doctor-patient relationship. See Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 884 (1992)
(plurality) (recognizing physician's First Amendment right
not to speak); Rust v. Sullivan, 500 U.S. 173, 200 (1991)
(noting that regulations on physician speech may "impinge
upon the doctor-patient relationship").
This Court has also recognized the core First Amendment
values of the doctor-patient relationship. In Nat'l Ass'n
for the Advancement of Psychoanalysis v. California Bd. of
Psychology, 228 F.3d 1043 (9th Cir. 2000), we recognized
that com- munication that occurs during psychoanalysis is
entitled to First Amendment protection. Id. at 1054. We
upheld California's mental health licensing laws that
determined when individuals qualified as mental health
professionals against a First Amendment challenge. Id. at
1053-56. Finding the laws content-neutral, we noted that
California did not attempt to "dictate the content of what
is said in therapy" and did not prevent licensed therapists
from utilizing particular "psychoanalytical methods." Id. at
1055-56.
Being a member of a regulated profession does not, as the
government suggests, result in a surrender of First
Amendment rights. See Thomas v. Collins, 323 U.S. 516, 531
(1945) ("the rights of free speech and a free press are not
confined to any field of human interest"). To the contrary,
professional speech may be entitled to "the strongest
protection our Constitution has to offer." Florida Bar v.
Went-For-It, Inc., 515 U.S. 618, 634 (1995). Even commercial
speech by professionals is entitled to First Amendment
protection. See Bates v. Arizona, 433 U.S. 350, 382-83
(1977). Attorneys have rights to speak freely subject only
to the government regulating with "narrow specificity."
NAACP v. Button, 371 U.S. 415, 433, 438-39 (1963)
In its most recent pronouncement on regulating speech
about controlled substances, Thompson v. Western States
Medical Ctr., 122 S. Ct. 1497 (2002), the Supreme Court
found that provisions in the Food and Drug Modernization Act
of 1997 that restricted physicians and pharmacists from
advertising compounding drugs violated the First Amendment.
Id. at 1500. The Court refused to make the "questionable
assumption that doctors would prescribe unnecessary
medications" and rejected the government's argument that
"people would make bad decisions if given truthful
information about compounded drugs." Id. at 1507. The
federal government argues in this case that a doctor-patient
discussion about marijuana might lead the patient to make a
bad decision, essentially asking us to accept the same
assumption rejected by the Court in Thompson. Id. We will
not do so. Instead, we take note of the Supreme Court's
admonition in Thompson: "If the First Amendment means
anything, it means that regulating speech must be a last -
not first - resort. Yet here it seems to have been the first
strategy the Government thought to try." Id.
[4] The government's policy in this case seeks to
punish physicians on the basis of the content of
doctor-patient communications. Only doctor-patient
conversations that include discussions of the medical use of
marijuana trigger the policy. Moreover, the policy does not
merely prohibit the discussion of marijuana; it condemns
expression of a particular viewpoint, i.e., that medical
marijuana would likely help a specific patient. Such
condemnation of particular views is especially troubling in
the First Amendment context. "When the government targets
not subject matter but particular views taken by speakers on
a subject, the violation of the First Amendment is all the
more blatant." Rosenberger v. Rector, 515 U.S. 819, 829
(1995). Indeed, even content-based restrictions on speech
are "presumptively invalid." R.A.V. v. St. Paul, 505 U.S.
377, 382 (1992).
[5] The government's policy is materially similar
to the limitation struck down in Legal Services Corp. v.
Velazquez, 531 U.S. 533 (2001), that prevented attorneys
from "present[- ing] all the reasonable and
well-grounded arguments necessary for proper resolution of
the case." 531 U.S. at 545. In Velazquez, a government
restriction prevented legal assistance organizations
receiving federal funds from challenging existing welfare
laws. Id. at 537-38. Like the limitation in Velazquez, the
government's policy here "alter[s] the traditional
role" of medical professionals by "prohibit[ing]
speech necessary to the proper functioning of those
systems." Id. at 544.
The government relies upon Rust and Casey to support its
position in this case. Rust, 500 U.S. 173; Casey, 505 U.S.
833. However, those cases did not uphold restrictions on
speech itself. Rust upheld restrictions on federal funding
for certain types of activity, including abortion
counseling, referral, or advocacy. See Rust, 500 U.S. at
179-80. In Casey, a plurality of the Court upheld
Pennsylvania's requirement that physicians' advice to
patients include information about the health risks
associated with an abortion and that physicians provide
information about alternatives to abortion. 505 U.S. at
883-84. The plurality noted that physicians did not have to
comply if they had a reasonable belief that the information
would have a "severely adverse effect on the physical or
mental health of the patient," and thus the statute did not
"prevent the physician from exercising his or her medical
judgment." Id. The government's policy in this case does
precisely that.
The government seeks to justify its policy by claiming
that a doctor's "recommendation" of marijuana may encourage
illegal conduct by the patient, which is not unlike the
argument made before, and rejected by, the Supreme Court in
a recent First Amendment case. See Ashcroft v. Free Speech
Coalition, Inc., 122 S. Ct. 1389, 1403 (2002). In Free
Speech Coalition, the government defended the Child
Pornography Prosecution Act of 1996 by arguing that,
although virtual child pornography does not harm children in
the production process, it threatens them in "other, less
direct, ways." Id. at 1397. For example, the government
argued pedophiles might use such virtual images to encourage
children to participate in sexual activity. Id. The Supreme
Court rejected such justifications, holding that the
potential harms were too attenuated from the proscribed
speech. "Without a significantly stronger, more direct
connection, the Government may not prohibit speech on the
ground that it may encourage . . . illegal conduct." Id. at
1403. The government's argument in this case mirrors the
argument rejected in Free Speech Coalition.
The government also relies on a case in which a district
court refused to order an injunction against this federal
drug policy. See Pearson v. McCaffrey, 139 F. Supp. 2d 113,
125 (D.D.C. 2001). The court did so, however, because the
plaintiffs in that case did not factually support their
claim that the policy chilled their speech. See Id. at 120.
In this case, the record is replete with examples of doctors
who claim a right to explain the medical benefits of
marijuana to patients and whose exercise of that right has
been chilled by the threat of federal investigation. The
government even stipulated in the district court that a
"reasonable physician would have a genuine fear of losing
his or her DEA registration to dispense controlled
substances if that physician were to recommend marijuana to
his or her patients."
[6] To survive First Amendment scrutiny, the
government's policy must have the requisite "narrow
specificity." See Button, 371 U.S. at 433. Throughout this
litigation, the government has been unable to articulate
exactly what speech is proscribed, describing it only in
terms of speech the patient believes to be a recommendation
of marijuana. Thus, whether a doctor-patient discussion of
medical marijuana constitutes a "recommendation" depends
largely on the meaning the patient attributes to the
doctor's words. This is not permissible under the First
Amendment. See Thomas v. Collins, 323 U.S. 516, 535 (1945).
In Thomas, the court struck down a state statute that failed
to make a clear distinction between union membership,
solicitation, and mere "discussion, laudation, [or]
general advocacy." The distinction rested instead on the
meaning the listeners attributed to spoken words. Id. The
government's policy, like the statute in Thomas, leaves
doctors and patients "no security for free discussion." Id.
As Judge Smith appropriately noted in granting the
preliminary injunction, "when faced with the fickle
iterations of the government's policy, physicians have been
forced to suppress speech that would not rise to the level
of that which the government constitutionally may prohibit."
172 F.R.D. at 696.
Our decision is consistent with principles of federalism
that have left states as the primary regulators of
professional conduct. See Whalen v. Roe, 429 U.S. 589, 603
n.30 (1977) (recognizing states' broad police powers to
regulate the administration of drugs by health
professionals); Linder v. United States, 268 U.S. 5, 18
(1925) ("direct control of medical practice in the states is
beyond the power of the federal government"). We must
"show[ ] respect for the sovereign States that
comprise our Federal Union. That respect imposes a duty on
federal courts, whenever possible, to avoid or minimize
conflict between federal and state law, particularly in
situations in which the citizens of a State have chosen to
serve as a laboratory in the trial of novel social and
economic experiments without risk to the rest of the
country." Oakland Cannabis, 532 U.S. at 501 (Stevens, J.,
concurring) (internal quotation marks omitted).
[7] For all of the foregoing reasons, we affirm
the district court's order entering a permanent
injunction.
AFFIRMED.
------------------------------------------------------------------------
KOZINSKI, Circuit Judge,
concurring:
I am pleased to join Chief Judge Schroeder's opinion. I
write only to explain that for me the fulcrum of this
dispute is not the First Amendment right of the doctors.
That right certainly exists and its impairment justifies the
district court's injunction for the reasons well explained
by Chief Judge Schroeder. But the doctors' interest in
giving advice about the medical use of marijuana is somewhat
remote and impersonal; they will derive no direct benefit
from giving this advice, other than the satisfaction of
doing their jobs well. At the same time, the burden of the
federal policy the district court enjoined falls directly
and personally on the doctors: By speaking candidly to their
patients about the potential benefits of medical marijuana,
they risk losing their license to write prescriptions, which
would prevent them from functioning as doctors. In other
words, they may destroy their careers and lose their
livelihoods.(1b)
This disparity between benefits and burdens matters
because it makes doctors peculiarly vulnerable to
intimidation; with little to gain and much to lose, only the
most foolish or committed of doctors will defy the federal
government's policy and continue to give patients candid
advice about the medical uses of marijuana.(2)Those
immediately and directly affected by the federal
government's policy are the patients, who will be denied
information crucial to their well-being, and the State of
California, whose policy of exempting certain patients from
the sweep of its drug laws will be thwarted. In my view, it
is the vindication of these latter interests - those of the
patients and of the state - that primarily justifies the
district court's highly unusual exercise of discretion in
enjoining the federal defendants from even investigating
possible violations of the federal criminal laws.
In 1996, the people of California, acting by direct
initiative, adopted a narrow exemption from their laws
prohibiting the cultivation, sale and use of marijuana. The
exemption applies only to patients whose physicians
recommend or prescribe the drug for medical purposes. To
those unfamiliar with the issue, it may seem faddish or
foolish for a doctor to recommend a drug that the federal
government finds has "no currently accepted medical use in
treatment in the United States," 21 U.S.C. §
812(b)(1)(B). But the record in this case, as well as the
public record, reflect a legitimate and growing division of
informed opinion on this issue. A surprising number of
health care professionals and organizations have concluded
that the use of marijuana may be appropriate for a small
class of patients who do not respond well to, or do not
tolerate, available prescription drugs.(3)
Following passage of the California initiative, the White
House Office of National Drug Control Policy commissioned
the National Institute of Medicine of the National Academy
of Sciences (IOM) to review the scientific evidence of the
therapeutic application of cannabis. See Inst. of Med.,
Marijuana and Medicine: Assessing the Science Base (Janet E.
Joy et al. eds., 1999) [hereinafter IOM Report],
available at http://www.nap.edu/books/0309071550/html. The
year-long study included scientific workshops, analysis of
relevant scientific literature and extensive consultation
with biomedical and social scientists. Id. at 15. It
resulted in a 250-plus-page report which concluded that
"[s]cientific data indicate the potential
therapeutic value of cannabinoid drugs, primarily THC, for
pain relief, control of nausea and vomiting, and appetite
stimulation," Id. at 179.
The IOM Report found that marijuana can provide superior
relief to patients who suffer these symptoms as a result of
certain illnesses and disabilities, in particular metastic
cancer, HIV/AIDS, multiple sclerosis (MS), spinal cord
injuries and epilepsy, and those who suffer the same
symptoms as side effects from the aggressive treatments for
such conditions. See Id. at 53, 142, 153-54, 157, 160. As a
consequence, the IOM Report cautiously endorsed the medical
use of marijuana. See Id. at 179. (4)
At about the time the IOM study got underway, the British
House of Lords - a body not known for its wild and crazy
views - opened public hearings on the medical benefits and
drawbacks of cannabis. Like the IOM, the Lords concluded
that "cannabis almost certainly does have genuine medical
applications, especially in treating the painful muscular
spasms and other symptoms of MS and in the control of other
forms of pain." Select Comm. on Sci. & Tech., House of
Lords, Sess. 1997-98, Ninth Report, Cannabis: The Scientific
and Medical Evidence: Report § 8.2 (Nov. 4, 1998),
available at http://www.publications.parliament.uk/. The
Lords recommended that the British government act
immediately "to allow doctors to prescribe an appropriate
preparation of cannabis, albeit as an unlicensed medicine."
Id. § 8.6.
In June 2001, Canada promulgated its Marihuana Medical
Access Regulations after an extensive study of the available
evidence. See Marihuana Medical Access Regulations, SOR
2001-227 (June 14, 2001), available at
http://laws.justice.gc.ca/en/. The new regulations allow
certain persons to cultivate and possess marijuana for
medical use, and authorize doctors to recommend and
prescribe marijuana to patients who are suffering from
severe pain, muscle spasms, anorexia, weight loss or nausea,
and who have not found relief from conventional therapies.
See Office of Cannabis Med. Access, Health Canada, Medical
Access to Marijuana - How the Regulations Work, at
http://www.hc-sc.gc.ca/hecs-sesc/ocma/ (last visited Aug.
23, 2002).(5)
Numerous other studies and surveys support the use of
medical marijuana in certain limited circumstances.(6) The
federal government itself has conducted studies on the
subject, and continues to fund and provide the marijuana for
studies conducted by private researchers. See, e.g., Bill
Workman, Pot Study in Spotlight: San Mateo County's Clinical
Trial Is a First in U.S., S.F. Chron., July 25, 2001, at
A13; see also University of California Center for Medicinal
Cannabis Research, Research, at
http://www.cmcr.ucsd.edu/geninfo/ research.htm (last visited
Aug. 23, 2002) (listing eleven studies, nine of which have
received regulatory approval, that will use federally
supplied marijuana). Finally, the medical histories of
individuals who have received and continue to receive
medical marijuana from the federal government (reproduced in
the Appendix) provide compelling support for the view that
medical marijuana can make the difference between a
relatively normal life and a life marred by
suffering.
No doubt based on this and similar evidence, seven states
(Alaska, Arizona, Colorado, Maine, Nevada, Oregon and
Washington) have followed California in enacting medical
marijuana laws by voter initiative, see Alaska Stat. Ann.
§§ 11.71.090, 17.37.010-.080; Ariz. Rev. Stat.
§ 13-3412.01; Colo. Const. art. XVIII, § 14; Me.
Rev. Stat. Ann. tit. 22, § 2383-B5; Nev. Const. art. 4,
§ 38; Or. Rev. Stat. §§ 475.300-.346; Wash.
Rev. Code §§ 69.51A.005-.902; one other state
(Hawaii) has done so by legislative enactment, see Haw. Rev.
Stat. §§ 329-121 to -128. The total number of
states that have approved marijuana for medical purposes now
stands at nine.
The evidence supporting the medical use of marijuana does
not prove that it is, in fact, beneficial. There is also
much evidence to the contrary, and the federal defendants
may well be right that marijuana provides no additional
benefit over approved prescription drugs, while carrying a
wide variety of serious risks.(7) What matters, however, is
that there is a genuine difference of expert opinion on the
subject, with significant scientific and anecdotal evidence
supporting both points of view. See (Medical)
MarijuanaInfo.org, at http://www.marijuanainfo.org (last
visited Aug. 27, 2002) (exhaustive catalog of information
and expert opinion on both sides of the medical marijuana
debate). For the great majority of us who do not suffer from
debilitating pain, or who have not watched a loved one waste
away as a result of AIDSinduced anorexia, see IOM Report at
154, it doesn't much matter who has the better of this
debate. But for patients suffering from MS, cancer, AIDS or
one of the other afflictions listed in the IOM report, and
their loved ones, obtaining candid and reliable information
about a possible avenue of relief is of vital
importance.
It is well established that the right to hear - the right
to receive information - is no less protected by the First
Amendment than the right to speak. See, e.g., Bd. of Educ.
v. Pico, 457 U.S. 853, 866-67 (1982); Va. State Bd. of
Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S.
748, 756-57 (1976); Kleindienst v. Mandel, 408 U.S. 753,
762-63 (1972). Indeed, the right to hear and the right to
speak are flip sides of the same coin. As Justice Brennan
put it pithily, "It would be a barren marketplace of ideas
that had only sellers and no buyers." Lamont v. Postmaster
General, 381 U.S. 301, 308 (1965) (Brennan, J., concurring),
quoted with approval in Pico, 457 U.S. at 867. This does not
mean, however, that the right to speak and the right to
listen always carry the same weight when a court exercises
its equitable discretion. In this case, for instance, it is
perfectly clear that the harm to patients from being denied
the right to receive candid medical advice is far greater
than the harm to doctors from being unable to deliver such
advice.(8) While denial of the right to speak is never
trivial, the simple fact is that if the injunction were
denied, the doctors would be able to continue practicing
medicine and go on with their lives more or less as before.
It is far different for patients who suffer from horrible
disabilities, such as plaintiff Judith Cushner, a mother of
two and the director of a preschool program, who has fought
breast cancer since 1989, and who only found relief from the
debilitating effects of chemotherapy by smoking cannabis to
counteract nausea, retching and chronic mouth sores;
plaintiff Keith Vines, an Assistant District Attorney,
decorated Air Force officer and father, whose bout with AIDS
had caused him to lose more than 40 pounds of lean body
mass, which he was only able to recover by using cannabis to
stimulate his appetite; and many others like them.
Enforcement of the federal policy will cut such patients off
from competent medical advice and leave them to decide on
their own whether to use marijuana to alleviate excruciating
pain, nausea, anorexia or similar symptoms. But
word-of-mouth and the Internet are poor substitutes for a
medical doctor; information obtained from chat rooms and
tabloids cannot make up for the loss of individualized
advice from a physician with many years of training and
experience.
A few patients may be deterred by the lack of a doctor's
recommendation from using marijuana for medical purposes,
but I suspect it would be very few indeed, because the penal
ties under state law for possession of small amounts of the
drug are trivial. See Cal. Health & Safety Code §
11357(b) (making small-quantity possession a misdemeanor
carrying a maximum $100 fine). A far more likely consequence
is that, in the absence of sound medical advice, many
patients desperate for relief from debilitating pain or
nausea would selfmedicate, and wind up administering the
wrong dose or frequency, or use the drug where a physician
would advise against it. Whatever else the parties may
disagree about, they agree that marijuana is a powerful and
complex drug, the kind of drug patients should not use
without careful professional supervision.(9) The unintended
consequence of the federal government's policy - a policy no
doubt adopted for laudable reasons - will be to dry up the
only reliable source of advice and supervision critically
ill patients have, and drive them to use this powerful and
dangerous drug on their own.
Which points to the second important interest impaired by
the federal government's policy: California's interest in
legalizing the use of marijuana in certain limited
circumstances, so that critically ill patients may use it if
and only if it is medically advisable for them to do so. The
state relies on the recommendation of a state-licensed
physician to define the line between legal and illegal
marijuana use. The federal government's policy deliberately
undermines the state by incapacitating the mechanism the
state has chosen for separating what is legal from what is
illegal under state law. Normally, of course, this would not
be a problem, because where state and federal law collide,
federal law prevails. See Gade v. Nat'l Solid Wastes Mgmt.
Ass'n, 505 U.S. 88, 108 (1992); cf. United States v. Oakland
Cannabis Buyers' Coop., 532 U.S. 483 (2001). In the
circumstances of this case, however, I believe the federal
government's policy runs afoul of the "commandeering"
doctrine announced by the Supreme Court in New York v.
United States, 505 U.S. 144 (1992), and Printz v. United
States, 521 U.S. 898 (1997).
New York and Printz stand for the proposition that
"[t]he Federal Government may neither issue
directives requiring the States to address particular
problems, nor command the States' officers, or those of
their political subdivisions, to administer or enforce a
federal regulatory program." Printz, 521 U.S. at 935.
Applied to our situation, this means that, much as the
federal government may prefer that California keep medical
marijuana illegal,(10) it cannot force the state to do so.
Yet, the effect of the federal government's policy is
precisely that: By precluding doctors, on pain of losing
their DEA registration, from making a recommendation that
would legalize the patients' conduct under state law, the
federal policy makes it impossible for the state to exempt
the use of medical marijuana from the operation of its drug
laws. In effect, the federal government is forcing the state
to keep medical marijuana illegal. But preventing the state
from repealing an existing law is no different from forcing
it to pass a new one; in either case, the state is being
forced to regulate conduct that it prefers to leave
unregulated.
It is true that by removing state penalties for the use
of marijuana, a doctor's recommendation may embolden
patients to buy the drug, and others to sell it to them, in
violation of federal law. But the doctors only help patients
obtain the drug by removing state penalties for possession
and sale; they do not purport to exempt patients or anyone
else from federal law, nor could they. If the federal
government could make it illegal under federal law to remove
a state-law penalty, it could then accomplish exactly what
the commandeering doctrine prohibits: The federal government
could force the state to criminalize behavior it has chosen
to make legal.(11)That patients may be more likely to
violate federal law if the additional deterrent of state
liability is removed may worry the federal government, but
the proper response - according to New York and Printz - is
to ratchet up the federal regulatory regime, not to
commandeer that of the state.
Nor does the state have another mechanism available to
distinguish lawful from unlawful conduct. The state law in
question does not legalize use of marijuana by anyone who
believes he has a medical need for it. Rather, state law is
closely calibrated to exempt from regulation only patients
who have consulted a physician. And the physician may only
recommend marijuana when he has made an individualized and
bona fide determination that the patient is within the small
group that may benefit from its use. If medical doctors are
unable or unwilling to make this determination because they
fear losing their DEA registration, there is no one who can
take their place. Nurses and paramedics aren't qualified to
do it, which is why they don't have authority to write
prescriptions in the first place. Lawyers, judges and police
can't do it, except by asking the advice of physicians.
State administrators can't do it. If doctors are taken out
of the picture - as the federal policy clearly aims to do -
the state's effort to withdraw its criminal sanctions from
marijuana use by the small group of patients who could
benefit from such use is bound to be frustrated. The federal
government's attempt to target doctors - eliminating the
only viable mechanism for distinguishing between legal and
illegal drug use - is a backdoor attempt to "control or
influence the manner in which States regulate private
parties." Reno v. Condon, 528 U.S. 141, 150 (2000) (internal
quotation marks omitted).
This is not a situation like United States v. Moore, 423
U.S. 122 (1975), where a doctor used his prescriptions
license to circumvent the federal drug laws. Moore conducted
inadequate or no medical examinations, ignored the results
of the few tests he did perform, prescribed however many
tablets the "patient" asked for and graduated his fee
according to the number he prescribed. See Id. at 142-43.
The Court concluded that Moore had abandoned his
professional role and effectively become a drug dealer.
Here, by contrast, doctors are performing their normal
function as doctors and, in so doing, are determining who is
exempt from punishment under state law. If a doctor abuses
this privilege by recommending marijuana without examining
the patient, without conducting tests, without considering
the patient's medical history or without otherwise following
standard medical procedures, he will run afoul of state as
well as federal law. But doctors who recommend medical
marijuana to patients after complying with accepted medical
procedures are not acting as drug dealers; they are acting
in their professional role in conformity with the standards
of the state where they are licensed to practice medicine.
The doctor-patient relationship is an area that falls
squarely within the states' traditional police powers. The
federal government may not force the states to regulate that
relationship to advance federal policy.
The commandeering problem becomes even more acute where
Congress legislates at the periphery of its powers. The
Constitution authorizes Congress to regulate activities that
affect interstate commerce. But that authority is not
boundless. As the Supreme Court recently reminded us,
Congress must exercise its power so as to preserve "the
Constitution's distinction between national and local
authority." United States v. Morrison, 529 U.S. 598, 615
(2000). That distinction, in turn, was designed "so that the
people's rights would be secured by the division of power."
Id. at 616 n.7; see also U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779, 838 (1995) (Kennedy, J., concurring) ("The
Framers split the atom of sovereignty. It was the genius of
their idea that our citizens would have two political
capacities, one state and one federal, each protected from
incursion by the other."). The Supreme Court's recent
Commerce Clause jurisprudence is cut from the same cloth as
the commandeering principle; both protect the duality of our
unique system of government. The Commerce Clause limits the
scope of national power, while the commandeering doctrine
limits how Congress may use the power it has. These checks
work in tandem to ensure that the federal government
legislates in areas of truly national concern, while the
states retain independent power to regulate areas better
suited to local governance.
Medical marijuana, when grown locally for personal
consumption, does not have any direct or obvious effect on
interstate commerce. Cf. Oakland Cannabis Buyers' Coop., 532
U.S. at 495 n.7 (reserving "whether the Controlled
Substances Act exceeds Congress' power under the Commerce
Clause"). Federal efforts to regulate it considerably blur
the distinction between what is national and what is local.
But allowing the federal government, already nearing the
outer limits of its power, to act through unwilling state
officials would "obliterate the distinction" entirely.
United States v. Lopez, 514 U.S. 549, 557 (1995) (internal
quotation marks omitted).(12)
It may well be, as our opinion holds, that interference
with the rights of doctors to speak is sufficient to support
the district court's injunction. Nevertheless, it remains a
significant step for a court to enjoin the prosecution and
even investigation of what federal officials believe may be
a violation of federal law. See, e.g., Bresgal v. Brock, 843
F.2d 1163, 1171 (9th Cir. 1987); Jett v. Castaneda, 578 F.2d
842, 845 (9th Cir. 1978). In affirming the district court, I
therefore find comfort in knowing that the interests of the
patients, and those of the state, provide significant
additional support for the district court's exercise of
discretion.
Appendix
From 1978 to 1992, the federal government conducted its
own medical marijuana program. Today, the government
continues to supply individuals who participated in this
program with marijuana under its Compassionate Care program;
they are among the few people in the country who can use the
drug legally. Together with the American Public Health
Association and other health care and medical organizations,
individuals in this group filed an amicus brief supporting
the plaintiffs. The following are their personal statements,
taken from that brief.
Barbara M. Douglass was diagnosed with Multiple Sclerosis
in 1988 at the age of 22. In 1991, Ms. Douglass began
receiving herbal cannabis from the United States government
upon the advice and assistance of her physician. Prior to
this date, Ms. Douglass had never tried cannabis. Each
month, the government provides her physician with one can
containing three hundred cannabis cigarettes, each weighing
7/10 oz. Ms. Douglass and her physician report that herbal
cannabis provides relief from pain and spasms and stimulates
her appetite to counteract the effects of wasting syndrome
from which she suffered prior to using cannabis. Ms.
Douglass has never experienced any adverse side effects from
marijuana. Without cannabis, Ms. Douglass believes she would
not be alive today.
George Lee McMahon was born July 22, 1950, with Nail
Patella Syndrome, a rare genetic disorder that causes severe
pain, nausea and muscle spasms. Mr. McMahon tried
conventional medications to treat his symptoms, but found
the side effects of these medications to be intolerable. In
the early 1980s, Mr. McMahon discovered that herbal cannabis
alleviated his pain, nausea and spasms, stimulated his
appetite and allowed him to sleep through the night. In
1988, Mr. McMahon informed his physician that he was
successfully self-medicating with cannabis. His physician
ordered him to cease his cannabis use and return to
prescription medications. Over the following six months, Mr.
McMahon's health progressively degenerated. Mr. McMahon's
physician then helped Mr. McMahon apply to the federal
government's Compassionate Care IND Program. In March 1990,
Mr. McMahon was accepted into the program and for the past
decade has received 300 cannabis cigarettes each month from
the United States government. Mr. McMahon and his physician
believe that without cannabis Mr. McMahon would not be alive
today.
Elvy Musikka was diagnosed with glaucoma in 1975 at the
age of 36. She tried conventional medications to treat her
condition, but could not tolerate them. Reluctantly, in
1976, she decided to try herbal cannabis at the advice of
her physician. The cannabis provided her immediate relief,
substantially lowering her intraocular pressure as no other
medication had, with few side effects. Ms. Musikka ingests
cannabis by smoking it, as well as eating it in baked goods
and olive oil. Fearful of the legal consequences of smoking
cannabis, Ms. Musikka underwent several risky surgeries in
an attempt to correct her condition, but they were
unsuccessful and left her blind in one eye. In 1988, Ms.
Musikka was arrested in Florida and charged with cannabis
possession. She challenged her conviction in the Florida
Supreme Court, where she prevailed, becoming the first
person in that state to establish a medical necessity
defense for cannabis. Shortly thereafter, the federal
government enrolled Ms. Musikka in its medical cannabis
program and has provided her with one and one-half pounds of
herbal cannabis on a quarterly basis ever since. Ms. Musikka
and her physician believe that if she were deprived of
cannabis she would go blind.
Irvin Henry Rosenfeld was diagnosed at age 10 with
multiple congenital cartilaginous exostosis, a disease
causing the continuous growth of bone tumors, and the
generation of new tumors, on ends of most of the long bones
in his body. He was told he would not survive into
adulthood. In an attempt to treat the painful symptoms of
this disease, he was prescribed high doses of opioid
analgesics, muscle relaxants and antiinflammatory
medications, which he took on a daily basis, but which had
minimal efficacy and produced debilitating side effects. In
1971, Mr. Rosenfeld began using smoked herbal cannabis with
the approval and under the supervision of a team of
physicians. Mr. Rosenfeld found the cannabis highly
efficacious in alleviating pain, reducing swelling, relaxing
muscles and veins that surround the bone tumors, and
preventing hemorrhaging. In 1982, the United States
government, operating under the Compassionate Care IND
Program, at the request of his physicians, began supplying
Mr. Rosenfeld with herbal cannabis to treat his condition.
For the past 19 years, the government has consistently
provided him with a 75-day supply of herbal cannabis,
totaling 33 ounces per shipment. Mr. Rosenfeld smokes 12
marijuana cigarettes a day to control the symptoms of his
disease. In the 30 years that Mr. Rosenfeld has used herbal
cannabis as a medicine, he has experienced no adverse side
effects (including no "high"), has been able to discontinue
his prescription medications, and has worked successfully
for the past 13 years as a stockbroker handling
multi-million dollar accounts. Mr. Rosenfeld and his
physicians believe that but for herbal cannabis, Mr.
Rosenfeld might not be alive, or, at the very least, would
be bed-ridden.
------------------------------------------------------------------------
References:
1. a) The policy was entitled "The Administration's
Response to the Passage of California Proposition 215 and
Arizona Proposition 200" and was released on December 30,
1996, by Barry R. McCaffrey, the Director of the Office of
National Drug Control Policy ("ONDCP") at the time. The
Administration's Response was promulgated by an interagency
working group thatincluded the ONDCP; the Drug Enforcement
Administration ("DEA"); the Department of Justice ("DOJ");
the Department of Health and Human Services ("HHS"); the
Nuclear Regulatory Commission; and the Departments of
Treasury, Defense, Transportation, and Education.
1. b) Dr. Neil M. Flynn, Professor at the University of
California at Davis School of Medicine, offers one
perspective:
AIDS medicine is my profession and my passion. I have
dedicated myself to this disease since 1983 when I opened
the Clinic at U.C. Davis. Thus, I am deeply concerned about
civil and criminal sanctions that loom over me . . . . If I
lost my Schedule II license, my ability to provide care for
people with AIDS - 80% of my patients - would be severely
compromised. I write 30-50 narcotic prescriptions per month
for my seriously ill patients. I would no longer be able to
do so if my DEA license were revoked. revoked.
2. As Alice Pasetta Mead explained in her expert
report:
[P]hysicians are particularly easily deterred by
the threat of governmental investigation and/or sanction
from engaging in conduct that is entirely lawful and
medically appropriate . . . . [A] physician's
practice is particularly dependent upon the physician's
maintaining a reputation of unimpeachable integrity. A
physician's career can be effectively destroyed merely by
the fact that a governmental body has investigated his or
her practice . . . . The federal government's policy had
precisely this effect before it was enjoined by the district
court. Dr. Milton N. Estes, Associate Clinical Professor in
the Department of Obstetrics, Gynecology and Reproductive
Medicine at the University of California-San Francisco
(UCSF), reports: As a result of the government's public
threats, I do not feel comfortable even discussing the
subject of medical marijuana with my patients. I feel
vulnerable to federal sanctions that could strip me of my
license to prescribe the treatments my patients depend upon,
or even land me behind bars . . . . Because of these fears,
the discourse about medical marijuana has all but ceased at
my medical office . . . . My patients bear the brunt of this
loss in communication.
And Dr. Stephen O'Brien, former co-director of UCSF HIV
Managed Care, similarly notes:
Due to fear caused by these threats, I feel compelled and
coerced to withhold information, recommendations, and advice
to patients regarding use of medical marijuana . . . . I am
fearful and reluctant to engage in even limited
communications regarding medical marijuana.
3. I am indebted to the brief of amici American Public
Health Association et al. for its lucid and forceful
analysis of this issue. Much of the discussion in the text
is plagiarized from that brief. For ease of readability, I
dispense with further attribution.
4. The IOM Report concluded:
Short-term use of smoked marijuana (less than six months)
for patients with debilitating symptoms (such as intractable
pain or vomiting) must meet the following conditions:
failure of all approved medications to provide relief has
been documented, the symptoms can reasonably be expected to
be relieved by rapidonsetcannabinoid drugs, such treatment
is administered under medical supervision in a manner that
allows for assessment of treatment effectiveness, and
[the treatment] involves an oversight strategy
comparable to an institutional review board process that
could provide guidance within 24 hours of a submission by a
physician to provide marijuana to a patient for a specified
use.
Id. at 179.
The IOM limited its recommendation to six months
primarily because of health concerns about damage from
smoking the drug for a prolonged period of time. See Id. at
126, 179. This concern may be less alarming to patients
suffering critical or terminal illnesses. As Dr. Debasish
Tripathy, Assistant Clinical Professor of Medicine at UCSF,
explains, "Any discussion of adverse consequences appears to
focus on the effects of long-term use (e.g., adverse effects
on the lungs), and even those concerns are speculative . . .
. In populations with short life expectancies, the risks
become less imminent and the benefits more paramount." See
also Jerome P. Kassirer, M.D., Editorial, Federal
Foolishness and Marijuana, New Eng. J. Med., Jan. 30, 1997,
at 366, 366 ("Marijuana may have long-term adverse effects
and its use may presage serious addictions, but neither
long-term side effects nor addiction is a relevant issue in
such patients.").
5. In 1988, an Administrative Law Judge of the Drug
Enforcement Administration similarly concluded that certain
patients should have access to medical marijuana. See In re
Marijuana Rescheduling Petition, No. 86-22 (Drug Enforcement
Admin. Sept. 6, 1988). ALJ Young found: The evidence in this
record clearly shows that marijuana has been accepted as
capable of relieving the distress of great numbers of very
ill people, and doing so with safety under medical
supervision. It would be unreasonable, arbitrary and
capricious for DEA to continue to stand between those
sufferers and the benefits of this substance in light of the
evidence in this record. Id. at 68. The DEA Administrator
did not endorse the ALJ's findings. See 54 Fed. Reg. 53,767
(Dec. 29, 1989).
6. See, e.g., Clive Cookson, High Hopes for Cannabis To
Relieve Pain, Fin. Times, Sept. 4, 2001, National News, at 4
("Cannabis extract is proving remarkably effective at
relieving severe pain in patients with multiple sclerosis
and spinal injury . . . ." ); David Baker et al.,
Cannabinoids Control Spasticity and Tremor in a Multiple
Sclerosis Model, 404 Nature 84 (2000) (finding therapeutic
potential in the use of cannabis to control the debilitating
symptoms of MS); William J. Martin, Basic Mechanisms of
Cannabinoid-Induced Analgesia, Int'l Ass'n for the Study of
Pain Newsletter, Summer 1999, available at
http://www.halcyon.com/iasp/ TC99Summer.html (noting that
cannabinoids can reduce pain); Richard E. Doblin & Mark
A.R. Kleiman, Marijuana as Antiemetic Medicine: A Survey of
Oncologists' Experiences and Attitudes, 9 J. Clinical
Oncology 1314 (1991) (reporting that a majority of
oncologists surveyed thought marijuana should be available
by prescription); H.M. Meinck et al., Effect of Cannabinoids
on Spasticity and Ataxia in Multiple Sclerosis, 236 J.
Neurology 120 (1989) (concluding from a neurological study
that herbal cannabis provided relief from both muscle spasms
and ataxia, a combined benefit not found in other available
medications); Vincent Vinciguerra et al., Inhalation
Marijuana as an Antiemetic for Cancer Chemotherapy, 88 N.Y.
St. J. Med. 525 (1988) (finding that 78% of patients who
were unresponsive to standard antiemetics responded
positively to cannabis).
7. See 66 Fed. Reg. 20,038 (Apr. 18, 2001) (citing
sources).
8. Dr. Stephen Eliot Follansbee, Chief of Staff at Davies
Medical Center, noted the importance of this information to
patients: Patients who seek my advice regarding the benefits
of medical marijuana are evidence that there is hope. They
have a very strong desire to survive their illness and to
function as normally and productively as possible . . . .
These patients ask me about marijuana not because they want
to get high, but because they are fighting for their lives,
which includes an honest search for the best available means
to do so. Government threats against the physicians who
struggle with these patients will inevitably thwart the
patients' efforts. They may, in fact, remove their doctors
from the healing process when vulnerable individuals are
most in need of their counsel. Denying information and
treatment advice to a seriously ill patient, when that
medicine could promote and facilitate critical medical
treatment, may needlessly hasten the patient's death.
9. Patients who use marijuana for medical purposes must
strike a delicate balance; they must take enough of the drug
so that they get needed relief from pain or other symptoms,
but not so much as to induce the drug's well-known
hallucinogenic side-effects, which interfere with daily life
activities. Valerie A. Corral, who suffered from severe
seizures before using medical marijuana, explains that she
only needs "a few puffs of marijuana" to find relief that
over fifteen pills a day could not provide. Judith Cushner
recalls that smoking small amounts of marijuana as part of
her cancer treatment was neither "a regular part of
[her] day, nor did it become a habit." She states:
"I smoked it only when nausea or retching commenced or
worsened, usually in conjunction with a treatment session.
There were weeks when I smoked it every few days. There were
also periods when I didn't smoke for weeks at a time. Each
time I felt a wave of nausea coming on, I inhaled just two
or three puffs and it subsided." Similarly, Assistant
District Attorney Keith Vines, countering AIDS-induced
wasting syndrome, found that "it took only two or three
puffs from a marijuana cigarette for my appetite to return .
. . . Because I only required a small dose to stimulate my
appetite, I did not need to get stoned in order to eat."
Patients lacking the benefit of medical guidance may well
take more than appropriate to alleviate their symptoms,
unnecessarily suffering the drug's powerful
side-effects.
10. Following the passage of California's medical
marijuana initiative, federal officials expressed concern
that the measure would seriously affect the federal
government's drug enforcement effort. They explained that
federal drug policies rely heavily on the states'
enforcement of their own drug laws to achieve federal
objectives. In hearings before the Senate Judiciary
Committee, DEA Administrator Thomas A. Constantine stated: I
have always felt . . . that the federalization of crime is
very difficult to carry out; that crime, just in essence, is
for the most part a local problem and addressed very well
locally, in my experience. We now have a situation where
local law enforcement is unsure . . . . The numbers of
investigations that you would talkabout that might be
presently being conducted by the [Arizona state
police] at the gram level or the milligram level would
be beyond our capacity to conduct those types of individual
investigations without abandoning the major organized crime
investigations. Prescription for Addiction? The Arizona and
California Medical Drug Use Initiatives: Hearing Before the
S. Comm. on the Judiciary, 104th Cong. 42-43, 45 (1996)
[hereinafter Judiciary Hearing] (statement of Thomas
A.Constantine); see also Tim Golden, Doctors Are Focus of
Plan To Fight New Drug Laws: Officials Deal with Narcotics'
Medical Use, N.Y. Times, Dec. 23, 1996, at A10 ("Federal
agents and prosecutors in fact pursue only a small fraction
of the country's drug cases. In most districts, officials
said, United States Attorneys bring Federal charges only if
a marijuana case involves the cultivation of at least 500
plants grown indoors, 1,000 plants grown outdoors, or the
possession of more than 1,000 pounds.").
11. Federal defendants concede that this is their goal,
arguing that the doctors' actions are illegal because
"[w]ithout [the doctors'] clinical
recommendation or approval, patients and their primary
caregivers are unable to invoke [Proposition 215's]
protections from criminal prosecution or sanction under
state law." Appellants' Reply Br. at 6 (internal quotation
marks omitted) (emphasis added). General Barry McCaffrey,
Director of the Office of National Drug Control Policy, made
the same point: "Federal law is not at stake; the actions of
local law enforcement are." Judiciary Hearing, supra, at
40.
12. The reluctance of state officials to enforce federal
drug policies against medical marijuana patients is not
merely theoretical. See William Booth, Santa Cruz Defies
U.S. on Marijuana: City Officials Vow To Defend Medical
Uses, Wash. Post, Sept. 18, 2002, at A3. It is precisely
such conflicts between state and federal officials that the
commandeering doctrine is designed in part to prevent.
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