Medical Marijuana Victory
Schroeder wrote that the case in question, Conant v. Walters, was replete with examples of how the threat of a federal investigation, and the possible revocation of a license, had chilled an open dialogue between doctor and patient. Further, she noted that throughout the litigation government officials had been incapable of "articulating exactly what speech is proscribed" by the DEA policy, "describing it only in terms of speech the patient believes to be a recommendation of marijuana," she wrote. "Thus, whether a doctor-patient discussion of medical marijuana consists of a 'recommendation' depends largely on the meaning the patient attributes to the doctor's words. This is not permissible under the First Amendment."
In a concurring opinion, Judge Alex Kozinski sought to highlight the burden the federal policy would place on both doctor and patient. Ultimately, he concluded that patients and the state would likely suffer the most harm. California voters overwhelming passed a medical marijuana law in 1996, Kozinski notes, making the federal policy a distinct intrusion on the state's rights. "In my view it is the vindication of these latter interests -- those of the patients and of the state -- that primarily justifies the district court's highly unusual exercise of discretion in enjoining the federal defendants from even investigating a possible violation of the federal criminal laws."
The 9th Circuit oversees 13 western states -- the largest U.S. circuit -- seven of which have adopted medical marijuana laws. See the full text of the opinion at www.ca9.uscourts.gov/ca9/newopinions.nsf.