Praise for decision in medical marijuana case: seen as free speech issue.

Dr. Marcus Conant is glad that he didn't get his day in court.

On Oct. 14, the U.S. Supreme Court announced that it had declined to take up the case of Conant v. Walters, in which Dr. Conant was the lead plaintiff. The case revolved around the question of whether doctors have the right to recommend medical marijuana as a treatment to certain patients, such as those suffering from wasting syndrome or from nausea and vomiting caused by chemotherapy.

"I'm pleased that the courts have recognized that the First Amendment to the Constitution means what it says," said Dr. Conant, a San Francisco dermatologist who provides primary care to many AIDS patients. 'I'm not surprised they have ruled that doctors have the right to discuss any subject the patient brings up in the privacy of the exam room."

Attorneys for the federal government argued that allowing physicians to recommend or prescribe marijuana to patients was "not in the public interest" because it could lead to an illegal purchase of the drug. The government also argued that by recommending or prescribing marijuana, doctors would be helping the patient to commit a crime.

The 9th U.S. Circuit Court of Appeals, in San Francisco, disagreed with the government's argument. 'A doctor's anticipation of patient conduct ... does not translate into aiding and abetting, or conspiracy," wrote Chief Judge Mary M. Schroeder in an October 2002 decision. "A doctor would aid and abet by acting with the specific intent to provide a patient with the means to acquire marijuana.... Holding doctors responsible for whatever conduct the doctor could anticipate a patient might engage in after leaving the doctor's office is simply beyond the scope of either conspiracy or aiding and abetting."

The government appealed the case to the U.S. Supreme Court. The Supreme Court's decision not to take the case came as no surprise to Dr. Conant, even though the court is considered by many to be conservative.

"Perhaps that only speaks to the fact that this is a pretty powerful case," he said. "Even as conservative as some members of the court are, they had to agree that the doctor in the privacy of the exam room has the absolute right ... to discuss any subject the patient wishes to discuss. Do we really want a culture where teens can't come into the exam room to talk about drug abuse or any other issue in their life? These are the issues here."