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Ronald Wender, MD, Chair Dear Dr. Wender: I am one of the attorneys who represented physicians and patients throughout the litigation that culminated in the Ninth Circuit's ruling in Conant v Walters, 309 F.3d 629 (9th Cir. 2002) and the Supreme Court's subsequent decision not to grant review in the case. Walters v Conant, 124 S. Ct 387 (2003). It has come to our attention that, at the November 7, 2003 meeting of the Medical Quality Division, some questions were raised about the degree to which the injunction in Conant protects the First Amendment rights of physicians to recommend the medical use of marijuana to their patients. I write to address that issue. The injunction issued by the District Court, and upheld without modification by the Ninth Circuit, permanently enjoins the federal government from: "(i) revoking a class-member physician's DEA registration merely because the doctor recommends medical marijuana to a patient based on a sincere medical judgment and (ii) from initiating any investigation solely on that ground. This injunction applies whether or not the physician anticipates that the recommendation will, in turn, be used by the patient to obtain marijuana in violation of federal law." Conant v. McCaffrey, 2000 WL 1281174, at *16 (N.D. Cal. 2000); see Conant v. Walters, 309 F.3d at 634. Thus this is the injunction that is binding on federal authorities. In affirming the district court's injunction, the Ninth Circuit recognized that there could be circumstances in which a physician could be guilty of aiding and abetting the illegal acquisition of marijuana. However, the Court specifically held that "[a] doctor's anticipation of patient conduct, however, does not translate into aiding and abetting, or conspiracy." Conant v. Walters, 309 F.3d at 635-36. More is required. The doctrines of aiding and abetting and conspiracy have quite limited application in this context. Id. at 636. In sum, the Ninth Circuit was unequivocal in holding that "a doctor's recommendation [of the medical use of marijuana] does not itself constitute illegal conduct..." Id. It was equally unequivocal in holding that the federal government's attempt to punish physicians merely for making such recommendations "strike[s] at core First Amendment interests of doctor and patients." Id. I hope this letter sets to rest any questions the members of your Board may have regarding the injunction issued in the Conant litigation. If I can be of further assistance, please do not hesitate to call on me. Very truly yours, Ann Brick |
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