Physicians’ Right to Recommend Medical Marijuana: Conant v. Walters

Marijuana LitigationConant v. Walters, 309 F.3d 629 (9th Cir 2002), stands for the proposition that physicians have a First Amendment right to discuss and recommend marijuana to their patients.

In 1996, California and Arizona passed initiatives decriminalizing cannabis for medical purposes and immunizing physicians from prosecution under state law for the “recommendation or approval” of marijuana for medical purposes. In response to this, the Department of Justice (DOJ) promulgated a policy that the “action of recommending or prescribing Schedule I controlled substances is not consistent with the public interest,” and recommending a federally illegal controlled substance would ultimately lead to revocation of a physician’s Drug Enforcement Administration (DEA) registration to authorize prescriptions.

Plaintiffs in Conant v. Walters were qualified patients, physicians, qualified patient groups, and Bay Area Physicians For Human Rights. Plaintiffs brought their lawsuit in 1997 in the Northern District Court for the State of California, suing DOJ officers, the Department of Health and Human Services, the White House Office of National Drug Control Policy, and the DEA to block enforcement of the DOJ’s policy against physicians. The federal district court ruled in Plaintiffs’ favor, issuing both preliminary and permanent injunctions against “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 permanent injunction prohibited the federal government from 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 from the DEA 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.”

The federal government then appealed to the Ninth Circuit Court of Appeals which saw the key issue as the extent to which the federal government can regulate doctor-patient communications:

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. The [federal district 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 doctor-patient communications without interfering with First Amendment interests.

The Ninth Circuit upheld the permanent injunction on the basis of a physician’s First Amendment right to discuss medical marijuana with their patients, but emphasized that its protection would not protect a physician who aids and abets a qualified patient in obtaining cannabis or in violating federal law.

The Court set forth its First Amendment position as follows:

The Supreme Court has recognized that physician speech is entitled to First Amendment protection because of the significance of the doctor-patient relationship. The government policy strikes 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.

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).

When drawing the line between physicians’ first amendment rights versus the federal government’s ability to enforce federal drug laws against physicians who violate the federal Controlled Substances Act (through prescribing or dispensing marijuana to a patient, or recommending it with the specific intent that the patient will use the recommendation like a prescription to obtain marijuana) the Court ruled that,

[t]he 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.

Conant, et al. v. Walters, et al., 309 F.3d 629 (9th Cir 2002)

NOTE: The above is part of our plan to summarize all cannabis civil cases with a published court decision. By civil case, we mean any case that involves cannabis or the cannabis industry that is not a strictly criminal law matter. These cannabis case summaries are intended both to keep you up to date on cannabis laws as interpreted by the courts and also to serve as a resource for anyone conducting cannabis law research. We also will seek to provide key unpublished cannabis law decisions as well, when available.