Ruling Protects Physicians Who Recommend Pot Judge’s Restraining Order Bars Government From Punishing Doctors

Boosters of medical marijuana scored a victory Friday when a judge in San Francisco banned the federal government at least temporarily from carrying out threats to punish California doctors who recommend marijuana to patients.

U.S. District Judge Fern Smith issued a temporary restraining order barring the government from retaliating against physicians and urged both sides to settle their differences.

Backers of medical marijuana, which was legalized in California by last November’s Proposition 215 but remains illegal under federal law, called Smith’s ruling a major victory.

“Today’s ruling protects doctors and patients and Proposition 215,” said Dave Fratello, a spokesman for Americans for Medical Rights, which sponsored the initiative. He said it is time for Clinton administration officials “to end their threats and let Proposition 215 work as the voters intended.”

Patricia Seitz, chief lawyer for Clinton’s office of drug policy, said she was disappointed by the ruling, but expressed hope a compromise could be reached.

“I look forward to the opportunity to work in the settlement process,” she said after the judge’s ruling. “I hope it can be fruitful.”

The lawsuit was filed by several San Francisco Bay Area doctors and patients after federal officials threatened a crackdown in the aftermath of Proposition 215, which allows the possession and cultivation of marijuana for medical use if recommended by a doctor.

Federal drug czar Barry McCaffrey announced in December that doctors who recommend pot would face the loss of their federal authority to prescribe medicine, be excluded from Medicare and potentially face criminal prosecution.

Although there have been only isolated episodes of federal drug agents contacting doctors, the federal decree prompted protest from physicians interested in medical marijuana as a potential treatment for patients suffering nausea from chemotherapy, AIDS wasting or glaucoma. They said it had a chilling effect on their ability to talk with patients about the drug.

U.S. officials in February attempted to clarify their position in a letter to medical leaders stressing they could discuss the use of marijuana as medicine with patients, but could not recommend it as a treatment as outlined in Proposition 215.

During Friday’s court hearing, Smith said the difference between “discuss” and “recommend” was unclear, leaving physicians grappling to understand what they could discuss with patients. In a written ruling, she said the lawsuit raises “at least a serious question” whether the government threats were undermining physician rights to free speech.

Graham Boyd, an attorney for the doctors and patients, said the judge’s order is by far “the most significant step” in the case.

“The judge ordered a cease-fire on the government’s war on doctors,” he said. He suggested that a settlement remains tricky.

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