This information provided by the Office of the State Public Health Officer. Dr. Marcus Conant, et. al., v. John P. Walters, et. al. This October 29, 2002 decision by the United States Court of Appeals for the Ninth Circuit upheld an earlier decision that the U.S. Government could not punish physicians for voicing their professional opinions based on their best medical judgment (Conant v. McCaffrey, September 7, 2000). The Court of Appeals decision upholds the First Amendments rights of physicians who recommend the use of medical marijuana for their patients.
Rhea Kessler, J.D., Assistant Attorney General for the Oregon Department of Justice, approved this summary at the request of the Oregon Medical Marijuana Program. This summary describes highlights of the October 29, 2002 decision of the United States Court of Appeals for the Ninth Circuit and is intended for information purposes only
and is not to be used for legal purposes or reference. For more complete information please check the Internet for the full text of this decision.
Dr. Marcus Conant, et al., v. John P. Walters et al.
CV 97-00139 WHA
October 29, 2002
On September 7, 2000, the US District Court for the Northern District of California entered a permanent injunction to protect the First Amendment rights of physicians (Conant v. McCaffrey, 2000 WL 1281174 N.D. Cal.). The September 2000 order prohibited the federal government from either revoking a physician's license to prescribe controlled substances or from conducting an investigation of a physician that might lead to such revocation, where the federal government's action is based solely on the physician's professional "recommendation" of the use of medical marijuana. The federal government appealed this decision and the US Court of Appeals for the Ninth Circuit issued a decision in Conant v. Walters (No. 00-17222) on October 29, 2002.
In Conant v. Walters, a three-judge panel of the Court of Appeals unanimously agreed that the federal government may not investigate or revoke the licenses of physicians who recommend the use of medical marijuana to their patients. More specifically, the Court of Appeals voted that: (1) a "recommendation" by a physician for a patient's use of medical marijuana is not similar to a "prescription" for a controlled substance; (2) a physician's anticipation that a patient will use his or her recommendation to obtain marijuana does not translate into the physician "aiding and abetting, or conspiracy" to obtain a controlled substance; (3) "physicians must be able to speak frankly and openly to patients," a need recognized through the law of doctor-patient privilege; and (4) doctor-patient privilege reflects the "imperative need for confidence and trust" inherent in the relationship and recognizes that "a physician must know all that a patient can articulate in order to identify and to treat the disease; barriers to full disclosure would impair diagnosis and treatment." One justice cited several studies "that indicate the potential therapeutic value" of medical marijuana for pain relief, control of nausea and vomiting, and appetite stimulation.
In making these, and similar determinations, the US Court of Appeals for the Ninth Circuit affirmed the September 2000 decision of Conant v. McCaffrey to: (1) uphold the injunction to protect physicians' First Amendment rights; and (2) prohibit 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 based on a professional recommendation of the use of medical marijuana. The September 2000 and October 2002 decisions apply only to the states within the jurisdiction of the Ninth Circuit Court-Oregon, Washington, California, Alaska, Hawaii, and Nevada.