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A 9th U.S. Circuit Court of Appeals panel sounded ready Monday to uphold an injunction that prohibits the federal government from investigating or punishing California doctors who recommend marijuana to patients. Though it’s possible the judges will send the case back to the trial court in light of last year’s U.S. Supreme Court decision on medical marijuana, they expressed few reservations about the need for the injunction and seemed almost eager to keep it in place. With Judge Alex Kozinski setting the tone, the panel hammered away at Department of Justice attorney Michael Stern, who argued the injunction has tied the government’s hands from going after abuses. “How is getting a note from your doctor,” Kozinski asked him several times, “interfering with federal enforcement [of drug laws]? Be specific.” Stern said the laws could be undermined if doctors “encourage” patients to seek out marijuana. But Kozinski said encouraging violations of the law is protected by the First Amendment. “You can do it all day long.” Conant v. Walters, 00-17222, was brought after the Clinton administration reacted to California’s passage of Proposition 215 by saying doctors who recommended marijuana to patients could lose their licenses to prescribe drugs. Proposition 215 provides a defense under state law for patients who use or purchase marijuana with a physician’s recommendation. The recommendation needn’t be in writing. A group of doctors, led by UCSF’s Dr. Marcus Conant, filed suit saying the Clinton policy interfered in the doctor-patient relationship. In September 2000, U.S. District Judge William Alsup of the Northern District of California permanently enjoined the government from either “revoking a class-member physician’s DEA registration merely because the doctor recommends medical marijuana to a patient based on a sincere medical judgment” or “initiating any investigation solely on that ground.” Ninth Circuit Judge Mary Schroeder was skeptical of the government’s position Monday, noting that a doctor’s recommendation isn’t the same as a prescription. “This really does sweep much more broadly,” she said. “But the injunction sweeps broader,” Stern countered, repeating his argument that the injunction goes far beyond protecting doctors who simply answer questions about marijuana. Senior Judge Betty Fletcher asked Stern what he believed doctors could legally tell patients about marijuana. But his examples, heavy with caveats, did little to satisfy the panel. Kozinski told Stern that his “embellishments” and “hedging” made him “nervous,” and asked him what a doctor could say about marijuana without any caveats. “I don’t really know,” Stern said. “How do you expect doctors to practice medicine,” Kozinski asked, “if you don’t really know?” Referring to Ashcroft’s Justice Department, which inherited the case from the Clinton administration, Kozinski then asked, “Why on earth does an administration that is committed to federalism … want to go to these lengths to put doctors in jail?” Stern’s opponent, the American Civil Liberties Union’s Graham Boyd, had a much easier time. The only tough question Kozinski asked was if he knew how to reach the author of one of the many amicus briefs. Kozinski was impressed, he told Boyd, by declarations submitted by four patients who receive marijuana as part of a federal program. “I thought it was very brave of them to do that,” he said. Judge Schroeder, meanwhile, asked Boyd if the case should be sent back to Alsup in light of the decision last year in U.S. v. Oakland Cannabis Buyers Cooperative, in which the U.S. Supreme Court ruled 8-0 that medical necessity wasn’t a valid defense under federal law. Boyd said the injunction wasn’t related to or based on lower court rulings in that case, and so didn’t require remand. At one point, Boyd tried to draw a parallel between medical marijuana and contraception, which was illegal in many states until the U.S. Supreme Court intervened 40 years ago. But Kozinski and Schroeder waved him off that path after noting some differences. “Let’s just not go there,” Schroeder suggested.

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