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Federal Judge Bars Clinton Administration From Punishing Doctors Who Recommend Medical Marijuana


May-June 1997

On April 30, Federal District Court Judge Fern M. Smith issued a preliminary injunction that bars the Clinton Administration from prosecuting doctors who recommend marijuana to their patients under Proposition 215, California's new medical marijuana law (Conant v. McCaffrey, 1997WL231113 (April 30, 1997); Bill Wallace, "Doctors Can Recommend Marijuana; Judge extends order until lawsuit is resolved," San Francisco Chronicle, May 1, 1997, p. A1; "U.S. Threat Over Drug Is Lifted in California," New York Times, May 1, 1997, p. A17).

Judge Smith ruled that allowing the U.S. Justice Department to punish doctors who recommend marijuana would encroach on the First Amendment guarantee of free speech and violate the patient-physician relationship. "The plaintiffs have raised serious questions as to whether the Government's medical marijuana policy is impermissibly vague," said Judge Smith. The judge added, "The government's fear that frank dialogue between physicians and patients about medical marijuana might foster drug use" does not justify restraining a doctor's ability to discuss medical issues frankly with a patient. Smith said the preliminary injunction will remain in effect until the lawsuit is resolved in federal court. The Government is expected to appeal the decision.

California doctors and patients sued the Justice Department in January after White House and top administration officials threatened to bar California doctors who recommend marijuana to their patients from Medicare and Medicaid programs; revoke their DEA licenses to prescribe medications; and possibly prosecute them for violating federal drug laws. The federal government later backtracked, saying that doctors could discuss the medical uses of cannabis, but could not provide oral or written recommendations for its use.

The preliminary injunction came a day after settlement talks failed between the plaintiffs and the Clinton Administration. On April 11, Judge Smith ordered the settlement talks and issued a temporary restraining order barring the Clinton administration from taking action to punish doctors who recommended marijuana to their patients (Bill Wallace, "No Prosecution For Doctors Who Recommend Pot," San Francisco Chronicle, April 12, 1997, p. A1; Eric Bailey, "Medicinal Pot Sanctions Suspended," Los Angeles Times, April 12, 1997, p. A20).

A copy of the suit is located at