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U.S. District Judge William Alsup on Thursday ruled that doctors may recommend marijuana to patients they deem in need of the drug. In doing so, Alsup turned back claims that such recommendations would impair the government’s war on drugs and expanded a previous injunction that prevented the government from revoking a doctor’s license to prescribe medicine and made it permanent. The move means doctors can recommend medical options to their patients with immunity — even if the option happens to be illegal. “In some cases … it will be the professional opinion of doctors that marijuana is the best therapy or at least should be tried. If such recommendations could not be communicated, then the physician-patient relationship will be seriously impaired. Patients need to know their doctors’ recommendations,” Alsup wrote. The ruling came just one week after the U.S. Supreme Court overruled the 9th U.S. Circuit Court of Appeals, ordering that San Francisco Bay Area pot clubs remain closed while their right to distribute marijuana is litigated. Alsup’s ruling sidestepped that issue, holding that restraining a doctor’s speech by threatening his medical practice raised serious First Amendment questions. Both Alsup’s case, Conant v. McCaffrey, 97-00139, and the separate controversy over the distribution of medical marijuana that has reached the Supreme Court, stem from state Proposition 215 — also called the Compassionate Use Act — a voter-approved, California initiative that made it legal for seriously ill patients to use marijuana. Shortly after Proposition 215 was enacted, the Drug Enforcement Agency issued a statement saying doctors may discuss the pros and cons of marijuana but may not explicitly recommend it. In court, government lawyers argued that a recommendation would lead the patient to purchase the drug — which would be a crime — and undermine the government’s war on drugs. Alsup criticized the government in court for the assumption, and he did it again in his opinion. “Contrary to the government’s argument, it is not true that a mere recommendation will necessarily lead to the commission of a federal offense. To the contrary, such recommendations can lead to lawful and legitimate responses,” he wrote, mentioning that it may lead patients to lobby the government to change the law. “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,” said Alsup. In emphasizing the free-speech aspect of the case, Alsup drew a distinction between his case and that of his courthouse neighbor, U.S. District Judge Charles Breyer. In a suit over the Oakland Cannabis Buyers’ Cooperative — also brought in the wake of Prop 215 — Breyer first ruled that a medical marijuana defense could not be raised, was then reversed by the 9th Circuit, subsequently reinstated the defense, and was ultimately reversed by the Supreme Court. In a footnote, Alsup went so far as to mention that neither case is dependent on the other. Alsup also mentioned several possible ways for a patient to obtain marijuana legally, but also left open the door for government prosecutors to pursue criminal charges against doctors accused of aiding and abetting drug trafficking. Applying pre-enforcement justiciability standards recently enacted in the 9th Circuit’s Thomas v. Anchorage Equal Rights Commission, 00 C.D.O.S. 6504, Alsup found that there had been no efforts by the government so far to pursue this avenue, and therefore declined to adjudicate the plaintiff’s claims in this arena, since there was no actual controversy. In the end, Alsup ruled, it’s not a doctor’s responsibility to prevent the crimes of his patients. “A sincere recommendation alone is not a federal crime, even if the doctor foresees it could be used to facilitate a federal crime,” Alsup wrote. That point is critical for the plaintiff doctors in the class action case, said Jonathan Weissglass, an associate at San Francisco’s Altshuler, Berzon, Nussbaum, Rubin & Demain. “This makes is clear that even if the doctor thinks the patient is going to go out and get marijuana, there’s protection,” he said. “The way the opinion reads, it’s very far-reaching.”

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