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Conant v. Walter


    Citation. Conant v. Walters, 309 F.3d 629, 2002 U.S. App. LEXIS 22492, 2002 Cal. Daily Op. Service 10709, 2002 Daily Journal DAR 12411

    Facts.

    In 1996, Arizona and California passed initiatives that decriminalized the use of marijuana for limited medical purposes and immunizing physicians from prosecution under state law for the “recommendation or approval” of using marijuana to treat the patients medical condition. Cal. Health & Safety Code § 11362.5. Under federal policy, a doctor’s action of recommending or prescribing marijuana, a Schedule 1 controlled substance, is not consistent with the “public interest.” Plaintiffs, a group of physicians licensed to practice in California who treat patients with serious illnesses, brought suit to enjoin the government from enforcing the policy because it threatens to punish physicians for communicating with their patients about the medical use of marijuana.

    Issue.

    Whether the federal government’s policy is interferes with a physician’s right to a candid doctor-patient communication under the 1st Amendment.

    Held.

    Yes, the federal government’s policy is interferes with a physician’s right to a candid doctor-patient communication under the 1st Amendment.

    Concurrence.

    The cases should not have been decided as a 1st Amendment issue. Instead, this case is about the doctor’s interest in giving advice to his or her patient. The advice here is remote and impersonal because the doctor will not benefit from the advice. Rather, the doctor will simply be satisfied that he or she is doing their job well. Doctors should not be vulnerable to intimidation by the federal government.

    Discussion.

    The district court noted that there are many legitimate reasons to allow a doctor to communicate with their patients about medical marijuana to alleviate their medical conditions. Although marijuana is federally illegal, by receiving the information from a physician, one may petition to change the law or seek to be placed in a patient federally approved, experimental therapy program. The government asserts that the injunction protects the government from citizen’s attempts to obtain marijuana in violation of federal law. Additionally, the government contends that the doctor may be held liable for aiding and abetting a patient in obtaining illegal marijuana. The court rejects this argument because the court stresses the importance of a doctor-patient relationship. Physicians must be able to speak candidly to their patients. This prohibition not only prohibits the discussion of marijuana, a subject matter, but it also prohibits a particular viewpoint, that the medical marijuana would have a positive or negative effect on the patient. Further, when the government targets specific viewpoints on an issue, the violation of the citizen’s 1st Amendment right becomes more blatant. Therefore, the court finds the federal policy to be a violation of the 1st Amendment, and affirms the district court’s order.


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