In Conant v. Walters, the United States Court of Appeals for the Ninth Circuit addressed the application of the First Amendment's right of free speech to a federal policy that prohibited the recommendation of medical marijuana by physicians. This class action suit, brought by physicians and severely ill patients, successfully enjoined the federal government from enforcing its policy revoking the federal prescriptive licenses of physicians who recommend or approve of marijuana use by patients suffering from certain severe illnesses. The federal government's policy, issued in 1996 through a statement of Barry McCaffrey, director of the Office of National Drug Control Policy (ONDCP), responded directly to recent legislation in California decriminalizing the use of marijuana under certain medically-approved circumstances. The California legislation also protected physicians from prosecution under state law for recommending marijuana use. Entering an injunction against the federal policy, the United States District Court held that, although the federal government had the right to regulate the distribution and use of marijuana, it could not interfere with First Amendment interests by precluding doctors and patients from discussing marijuana as a treatment for medical conditions. On appeal, the majority affirmed on the basis of the First Amendment implications of the government policy. The concurring opinion, however, expressed another reason for enjoining the government from enforcing its policy, specifically the Commandeering Doctrine, which prohibits the federal government from requiring that states address a particular problem or enforce a federal regulatory program. The Supreme Court denied certiorari on October 14, 2003. This Note explores federal laws that pertain to marijuana use, as well as California's policies on medical marijuana and physician recommendations, considering the implications of both the First Amendment and the Commerce Clause in the resolution of this case.
Katharine M. McCarthy,
Conant v. Walters: A Misapplication of Free Speech Rights in the Doctor-Patient Relationship,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol56/iss2/9