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| Attorney Graham Boyd to Fred Gardner |
Statement by Attorney Graham Boyd to O'Shaughnessy's editor Fred
Gardner" 11/11/03 in response to the interpretation of Deputy
Attorney General Mary Agnes Matysczewski of Conant v McCaffrey and
Conant v. Walters decisions
Graham Boyd: There should be no controversy about this at all. The
decision from Alsup ended with specific injunctive language.
Everything else was explanation. The injunction itself is the court’s
order. The 9th circuit upheld that. They could have modified it but
did not.
The discussion in the 9th circuit is important; it makes clear
exactly why the injunction is justified. At the end of the day, if
you’re subject to an injunction, you have to have precise words that
tell you what you can and can’t do. That language is the injunction
itself.
The Appellate Court could have modified the injunction. They could
also clarify any ambiguities. But they didn’t do that; they affirmed
it, so it’s very clear that that injunction applies to the federal
government. It’s also very clear that a physician issuing a
recommendation in the circumstances described by the injunction is
protected.
FG: In my brief testimony I said that a doctor might be at risk (of
“aiding and abetting”)
If they took additional steps such as telling the patient where to go
to obtain it, or what they might expect to pay, or something like
that. Was that correct?
Graham Boyd: In general, yes (without reaching conclusions on the two
examples offered). Certainly for a doctor to supply marijuana would
be a violation of federal law. Depending on the circumstances and the
reasons for doing so, active assistance in acquiring marijuana might
be as well. The line most people understand the injunction to cover
is basically that as long as the doctor is providing info that is
medically relevant, the doctor is protected. You’re practicing
medicine, and that’s what is protected —the purveying of medical
information. And that’s really broad.
It seems bizarre to me that a lawyer for the state medical board
would be commenting on what’s a violation of federal law. It’s not
within their jurisdiction.
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