1/14/97
This morning, 9 prominent California physicians, a physician's organization, 4 patients and a patient's organization filed a class action suit in federal district court in San Francisco against the United States government for its issuance of threats against doctors who recommend and patients who use medical marijuana. The suit, titled "Conant et al. v. McCaffrey et al.", seeks from the federal court a declaration "that physicians and patients have the right, protected by the First Amendment...to communicate in the context of a bona fide physician-patient relationship, without government interference or threats of punishment, about the potential benefits and risks of the medical use of marijuana." If successful, the government will be enjoined "from enforcing or threatening to enforce, in criminal, civil, or administrative proceedings, any federal statute, regulation or other provision of law in a manner that would punish or penalize physicians for communicating with their patients, using their best medical judgment...regarding potential risks and benefits of medical use of marijuana. The suit includes 13 named plaintiffs (9 of whom are doctors) and two organizational plaintiffs. It is a class action against Barry McCaffrey, Janet Reno, Donna Shalala and Thomas Constantine in their official capacities as representatives of ONDCP, DOJ, DHHS and DEA respectively. The full text of the complaint can be found at http://www.lindesmith.org/mmjsuit.html on the web.
The suit comes on the heels of a judge's order to lift the injunction that had closed the San Francisco Cannabis Buyers' Club, declaring the CBC a "caregiver" under the provisions of Proposition 215. Judge David A. Garcia stated that he would not "thwart the will of the voters." [We've been told that National Public Radio's Morning Edition tomorrow (Wed. 1/15) will discuss the club's reopening.]
Physician groups, AIDS groups, and 1st amendment civil liberties groups who might wish to file Amicus Briefs in support of the action are asked to contact Dan Abrahamson at (415) 282-2775. Groups with California constituencies are particularly sought.
Attached is a press release from Americans for Medical Rights, with background information.
PRESS RELEASE FROM AMERICANS FOR MEDICAL RIGHTS
Doctors, Patients File Class Action Suit to Block Federal Punishments for Medical Marijuana
LOS ANGELES, January 14 -- A group of physicians and patients today filed a class action suit in federal court in San Francisco seeking an injunction blocking federal officials from taking any punitive action against physicians who simply recommend the medical use of marijuana to their patients.
The lawsuit names as defendants: Gen. Barry McCaffrey, Director of the White House Office of National Drug Control Policy; Thomas Constantine, Administrator of the U.S. Drug Enforcement Administration (DEA); Janet Reno, Attorney General of the United States; and Donna Shalala, Secretary of the Department of Health and Human Services (HHS). Representing the plaintiffs are the San Francisco firm of Altshuler, Berzon, Nussbaum, Berzon & Rubin and the American Civil Liberties Union of Northern California.
Graham Boyd, an attorney with Altshuler, Berzon, Nussbaum, Berzon & Rubin, said, "Our view is that the federal effort to gag physicians is blatantly unconstitutional. Discussions between a physician and patient about the risks and benefits of medical marijuana constitute protected speech under the First Amendment."
Boyd continued, "The Supreme Court has said that the government may not bar physicians from discussing contraception or abortion, both controversial topics in their day. By the same logic, federal officials may not use controversy over marijuana as an excuse to intrude into the sanctity of the physician-patient relationship."
Dr. Marcus Conant, a San Francisco specialist in AIDS treatment and the lead plaintiff in the lawsuit, said, "The federal government has threatened me and doctors like me with dire consequences for simply discussing medical marijuana with my patients. My colleagues and I have seen marijuana work to relieve nausea and stimulate appetite where other drugs fail, and scores of studies support our observations."
Dr. Conant continued, "The medical community deserves more respect than having a retired General in Washington tell us how to practice medicine. Physicians should be allowed to discuss medical marijuana without having to risk arrest or other punishment by the federal government."
Dr. Arnold Leff, a Santa Cruz AIDS specialist who served in the White House Drug Abuse Office under President Richard Nixon, added, "By approving Proposition 215, California voters have endorsed the right of patients to use marijuana medically under a physician's care. To give force to that right, physicians also must be protected."
Jo Daly, a former police commissioner of San Francisco and a patient who uses marijuana medically, said, "The federal government is trying to intimidate the doctors who treat me for cancer. Marijuana literally saved my life by stopping the horrible vomiting caused by my chemotherapy. Bureaucrats like Barry McCaffrey want to get in between me and my doctors and make me another victim of their drug policies. This began as a war on drugs. Now it's become a war on doctors."
RESPONSE TO FEDERAL PLAN
The lawsuit is a direct response to the Clinton administration's December 30 announcement of its plan to fight implementation of Proposition 215 by threatening doctors with a range of punishments if they are found to be recommending medical marijuana to their patients. The defendants named in the suit are the key federal officials involved in drafting and implementing the Clinton administration strategy.
Proposition 215 altered California law by creating a new exemption for a specific group of people -- seriously ill patients who are using marijuana on the "recommendation or approval" of a physician. If an arrested patient is to be exonerated, he or she must prove that a physician advised that marijuana was medically appropriate for that patient.
However, given the new threats of federal action against physicians who recommend marijuana, doctors face a difficult choice when they observe that marijuana appears to be medically appropriate for a patient. Doctors can inform patients of their truthful medical opinion, and expose themselves and their practice to punitive action that could destroy their livelihood, or censor their discussions with patients, depriving them of useful treatment alternatives and eroding the trust and confidence essential to effective medical care.
The lawsuit filed today argues that such a choice is no choice at all, and that the threat against doctors is in fact an unconstitutional intrusion into communications between doctor and patient with the potential to harm both. The doctor's recommendation to the patient, and his or her public acknowledgement of that recommendation in the context of a criminal proceeding against the patient, both constitute protected speech for which any penalties at all would be impermissible, the suit argues.
PUNISHMENT OF ABUSES STILL POSSIBLE
Boyd, the attorney helping with the suit, said, "There must be a means available to punish those who would abuse the new law, whether they be bogus 'patients' or profiteering doctors. And our lawsuit is carefully phrased to provide no comfort to a doctor who recommends marijuana without having a good-faith diagnosis, based on a bona fide physician- patient relationship."
"But," Boyd continued, "the Clinton administration vastly overreached in deciding to threaten all California doctors. That overly broad threat made this action necessary."
"This lawsuit," said Dr. Conant, the San Francisco AIDS care physician, "directly challenges the federal government's declaration that any doctor making any recommendation for marijuana is committing a punishable act -- and it offers real hope of protection for responsible physicians in this state."
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Facts About the Physician/Patient Class Action Suit
January 14, 1997
CASE NAME: Conant, et al vs. McCaffrey, et al
CASE #: _________
COURT: United States District Court for the Northern District of California
PURPOSE: 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.
PLAINTIFFS: (below)
LEGAL TEAM:
Altshuler, Berzon, Nussbaum, Berzon & Rubin -- San Francisco Lowell
Finley, Graham Boyd and Jonathan Weissglass
American Civil Liberties Union of N. California -- SF Anne Brick
DEFENDANTS:
Gen. Barry McCaffrey, Director, White House Office of National Drug Control
Policy; Thomas Constantine, Administrator, U.S. Drug Enforcement Administration;
Janet Reno, Attorney General of the United States; and Donna Shalala, Secretary,
Department of Health and Human Services.
SUMMARY OF ARGUMENT:
A physician's discussion or recommendation of medical marijuana for a patient is speech protected by the First Amendment. The Supreme Court has said that the government may not bar physicians from discussing contraception or abortion, both controversial topics in their day. By the same logic, the federal government may not use controversy over marijuana as an excuse to intrude into the sanctity of the physician-patient relationship. The federal effort to gag physicians should be enjoined and declared unconstitutional.
In this class action on behalf of physicians throughout California, plaintiffs seek an injunction against federal agenices, including the Drug Enforcement Administration, Department of Justice and Department of Health and Human Services, barring punitive action against physicians for the mere discussion or recommendation of medical marijuana for a patient. In a December 30 White House announcement, these agencies officially threatened to prosecute physicians, strip them of their drug-prescribing licenses, and bar them from participating in the Medicare and Medicaid programs.
LIST OF PLAINTIFFS --
PHYSICIANS IN AIDS CARE:
Dr. Marcus Conant,
AIDS clinician, Conant Medical Group, SF
Dr. Arnold Leff,
family care physician specializing in AIDS, Santa Cruz
Dr. Neil Flynn,
AIDS clinician, professor, Univ. of California at Davis
Dr. Milton Estes,
AIDS clinician, Mill Valley
Dr. Stephen Follansbee,
AIDS clinician, San Francisco
Dr. Stephen O'Brien,
AIDS clinician, Berkeley
Dr. Robert Scott III,
general practitioner specializing in AIDS, Oakland
PHYSICIANS IN CANCER TREATMENT:
Dr. Debu Tripathy,
breast cancer medical oncologist, professor, Univ. of California, San Francisco
Dr. Donald Northfelt,
specialist in AIDS and cancer treatment, Palm Springs
PATIENTS:
Jo Daly,
former police commissioner, San Francisco, cancer patient
Keith Vines,
deputy San Francisco district attorney, San Francisco, AIDS patient
Judith Cushner,
San Francisco, breast cancer survivor
Valerie Corral,
Santa Cruz, epilepsy sufferer
ORGANIZATIONS:
Bay Area Physicians for Human Rights Being Alive:
People with AIDS/HIV Action Coalition, AIDS patient advocacy organization,
Los Angeles
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