Ashcroft Seeks Supreme Court Permission to Overturn Free Speech Ruling on Physician-Patient Discussion of Medical mar1juana http://www.drcnet.org/wol/295.shtml#conantappeal (courtesy Drug Policy Alliance, http://www.drugpolicy.org) On Monday, July 7, the Solicitor General of the United States filed papers in the US Supreme Court requesting that the Court overturn the 9th Circuit's unanimous decision in Conant v. Walters, which supports a doctor's right to openly recommend or approve mar1juana as treatment for their patients. By taking this action, the Solicitor General seeks to allow the federal government to investigate any physician who mentions the word "mar1juana" to patients and to sanction those who approve it for patient use. "The 9th Circuit's opinion debunks the Justice Department's claims that mar1juana has no medical usefulness -- citing a large body of medical research to the contrary," said Daniel N. Abrahamson, Director of Legal Affairs at the Drug Policy Alliance.
I guess they just won't be happy until we are living in a totalitarian, animal farmesque country. They actually want to restrict speech between a doctor and a patient.
Bush might win the next election if he came out and said that he had made a mistake in his first term, and that the mistake's name was John Ashcroft.
1) The 9th circuit is a joke. They ruled that the pledge of alliegence is unconstitutional. Please pay no heed to anything political or legal that comes out of California, I beg of you. It is an embarrasment to me and all rational Californians. 2) Of course it should be overturned. Doctor-patient priveledge does not give someone license to break the law, or conspire to break the law. Just as a lawyer, psychiatrist, or priest could not suggest that someone toke up, neither can a doctor. 3) If you think drug prohibition is bad (which you do) work to overturn it. Do not try to circumvent it.
The 1st amendment is the foundation of the American way, but it doesnt protect the right to do anything you please. The case you refer to is best left up to the judical system. This is an overview of the 1st.. http://www.law.cornell.edu/topics/first_amendment.html The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference. See U.S. Const. amend. I. Freedom of expression consists of the rights to freedom of speech, press, assembly and to petition the government for a redress of grievances, and the implied rights of association and belief. The Supreme Court interprets the extent of the protection afforded to these rights. The First Amendment has been interpreted by the Court as applying to the entire federal government even though it is only expressly applicable to Congress. Furthermore, the Court has interpreted, the due process clause of the Fourteenth Amendment as protecting the rights in the First Amendment from interference by state governments. See U.S. Const. amend. XIV. Two clauses in the First Amendment guarantee freedom of religion. The establishment clause prohibits the government from passing legislation to establish an official religion or preferring one religion over another. It enforces the "separation of church and state. Some governmental activity related to religion has been declared constitutional by the Supreme Court. For example, providing bus transportation for parochial school students and the enforcement of "blue laws" is not prohibited. The free exercise clause prohibits the government, in most instances, from interfering with a persons practice of their religion. The most basic component of freedom of expression is the right of freedom of speech. The right to freedom of speech allows individuals to express themselves without interference or constraint by the government. The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. A less stringent test is applied for content-neutral legislation. The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. The right to free speech includes other mediums of expression that communicates a message. Despite popular misunderstanding the right to freedom of the press guaranteed by the first amendment is not very different from the right to freedom of speech. It allows an individual to express themselves through publication and dissemination. It is part of the constitutional protection of freedom of expression. It does not afford members of the media any special rights or privileges not afforded to citizens in general. The right to assemble allows people to gather for peaceful and lawful purposes. Implicit within this right is the right to association and belief. The Supreme Court has expressly recognized that a right to freedom of association and belief is implicit in the First, Fifth, and Fourteenth Amendments. This implicit right is limited to the right to associate for First Amendment purposes. It does not include a right of social association. The government may prohibit people from knowingly associating in groups that engage and promote illegal activities. The right to associate also prohibits the government from requiring a group to register or disclose its members or from denying government benefits on the based on an individuals current or past membership in a particular group. There are exceptions to this rule where the Court finds that governmental interests in disclosure/registration outweigh interference with first amendment rights. The government may also, generally, not compel individuals to express themselves, hold certain beliefs, or belong to particular associations or groups. The right to petition the government for a redress of grievances guarantees people the right to ask the government to provide relief for a wrong through the courts (litigation) or other governmental action. It works with the right of assembly by allowing people to join together and seek change from the government.
What you might think of the 9th circuit is immaterial. They found grounds for this one and until it hits the Supremes, it is a precedent. First of all, doctor patient privilege does cover their conversations about the subject as the doctor is simply recommending something that could work for the patient. The doctor is following the Hippocratic oath and trying to have a positive outcome on his/her patient's health, regardless of the political obstacles. Suggesting that someone use MJ is not conspiracy to purchase, it is a conversation between doctor and patient and should remain outside the purvey of the government. Just as Harriet Tubman and others worked to see slavery end WHILE they were helping to free slaves already in captivity, I will work to see prohibition ended WHILE defending the rights of my fellow Americans. One does not preclude the other. Circumvention is sometimes a necessary part of getting a policy overturned.
Ashcroft is a fundamentalist Christian. He's doing God's work. So that comes above the Constitution. *sigh*
Not in our system of government. He may personally belive that he is doing God's work, but that is one thing that our founders did NOT want: a government ruled by the tenets of a particular religion. I have a great deal of faith in God. I have absolutely NO faith that Ashcroft's God cares for anyone but Ashcroft.
Ashcroft is also supposed to be a supporter of states rights as a Republican yet raids medical mar1juana clubs, all of which were following city approved guidelines in the state approved medical MJ program. A few months ago, one of these providers was convicted and was sentenced a few weeks ago...to 1 day. The courts are going to hear these cases and will soon start to find that the government is going too far. It is happening across the world, like in Canada, where an Ontario judge has thrown out all of the mar1juana laws in the province (http://www.stopthedrugwar.org/chronicle/291/ontario.shtml). This is not going to go well for prohibitionists, who would do well to mitigate disaster and come to their senses. Newsbrief: Feds Appeal Ed Rosenthal Sentence http://www.drcnet.org/wol/295.shtml#rosenthalsentence Federal prosecutors who won a conviction against "ganja guru" and medical mar1juana provider Ed Rosenthal, but lost the battle to send him to prison, were back in court July 3 seeking to appeal his slap-on-the-wrist one-day sentence plus probation. US attorneys filed a motion with the US 9th Circuit Court of Appeals seeking to review the sentence handed down by US District Court Judge Charles Breyer. mar1juana manufacture, the crime for which Rosenthal was convicted, normally carries a five-year mandatory minimum sentence. Prosecutors had asked for 6 ½ years, but Breyer concluded that "the unique, extraordinary circumstances of this case" merited the dramatic downward departure in the sentence. In a case that threw the harsh glare of the national and international media spotlight on the Bush administration's aggressive attack on medical mar1juana, Rosenthal was arrested in February 2002 as he oversaw the production of medical mar1juana in Oakland. Rosenthal was acting in accordance with California state law and had been deputized by the city of Oakland to grow medical mar1juana. He was convicted in federal court in San Francisco after Judge Breyer refused to allow Rosenthal to use state law as a defense or even mention medical mar1juana, but that successful outcome for prosecutors turned into a phyrric victory when jurors later publicly denounced their own verdict upon hearing the rest of the story. The prosecutors' appeal was "not surprising," Rosenthal told the San Francisco Examiner. "They are wasting more taxpayers' money trying to put me in prison for this," said Rosenthal. "It would be absurd, if it were not so serious. They should be happy with what they got," he said. "Right now, I'm a felon, and by the time I'm done with this, not only will I be exonerated, the courts will find that these laws should be thrown out."
Wow, how refreshing! Let's prosecute people for using the word "mar1juana." Kind of reminds me of that part from Monty Python's the Life of Brian when they stoned the guy for uttering Jehovah. I don't understand why the Bush admininstration wants to continue to pursue this fruitless quest against weed. First of all, those who say that mar1juana has no medical benefits have never been high before! For a person with terminal cancer or AIDS, the high would go a long way to alleviating pain and promoting appetite (the dreaded munchies). Second, the Bush administration to me is wholly beholden to all these holy-rollers who seek to use the police powers of govt. to enforce their own brand of morality on America. "No more fun of any kind!" to quote Dean Wormer from Animal House. Thirdly, I guess the Bush admin is pretty hypocritical on the issue of state's rights. If the Republicrats are supposedly for a less-intrusive Federal government, what does this smack of? Lastly, no matter how hard they crack down, people will continue to smoke weed, just like drinkers continued to drink during Prohibition. The tide is turning and the Bush admin had better get out of the way on this. Eventually weed will be legalized or at least decriminalized and the Bushies will find themselves on the wrong side of history. That's my .10 and vote libertarian in the next election!
There is a big reason why John Ashcroft lost the 2000 Missouri Senate election to a dead man, yet George W. Bush appointed him Attorney General anyway.
This is a HUGE red herring issue. The ideas of patient-physican privilege are to encourage people to seek medical attention...to feel like the doctor won't run off and tell the community they're suffering from a veneral disease, etc. It absolutely may not be twisted to protect criminal action. In the same way, the attorney/client privilege can't be used in furtherance of a crime. If you commit a crime and you admit same to your attorney, that's protected. But don't call an attorney, tell him you plan on killing your wife, and expect that to protect you. It won't...in fact, the attorney then has a duty to turn your ass in to prevent the action from ever taking place. Andy...you clearly have a very strong anti-prohibition slant...and I can certainly understand that. So fight the source...fight the laws that prohibit the use of mar1juana. But as long as it is illegal, you can not use professional privileges to further crimes...you just can't. There's nothing new about that.
Not twisted when the doctor is trying to fulfil his/her DUTY as a physician (Hippocratic oath) to treat the patient. For doctors, I believe the patient's well-being overrides any interest the government might have in their relationship. The physician is not helping the patient to plan a crime, s/he is simply giving a medical opinion as to the possible efficacy of mar1juana as a treatment for the ailment in question. BTW, are you really tring to make MJ use analagous to murdering your wife? I do and will continue to fight against these laws. This article show that the government does not care about the medical benefits of MJ and is going out of its way to try to handcuff doctors' ability to talk honestly with their patients. Doctor patient privilege is about more than just not letting the community know you have the clap, it is about letting the doctor discuss health issues with the patient free from interference from anyone, government included.
1. MJ use is analagous to murder for the purpose of my post. It's illegal. End of story. That's the only concern. 2. This isn't a Constitutional law issue...it's not an equal protection argument...there is no "compelling interests" test for this kind of matter. 3. The privilege isn't even the doctor's to control, andy! The privilege belongs solely to the patient. And it does NOT protect everything said between a doctor and a patient. I recently dealt with a case where this privilege was dealt with extensively. It is less likely to protect the words of the doctor than the patient...and it isn't absolute. Not at all. You can argue all you want...but I'm telling you, it's simply not regarded in the way you're speaking. 4. If a doctor uses his position to suggest the use of an illegal substance, he's already violated his oath. He's already violated the regulations he lives under.
Said like a true prohibitionist. Legality is the only concern, end of story. LOL. You and the DEA might not care to admit it, but there is a TON of proof that MJ has a positive impact on several symptoms for many different afflictions. If a drug, plant, or herb has a positive effect for a patient, the doctor should have the right to talk to their patient about it. No compelling interest for you, maybe, but for the guy who can't keep anything down as a result of chemotherapy, there is a compelling interest. Same for the woman suffering from AIDS wasting syndrome or the grandmother suffering from glaucoma. This is about the right of the doctor to use everything that can have a positive impact at their disposal. You may be right about the case law. I am not a lawyer. I DO know that doctors know more about what works and what doesn't than the government and that doctors need to have the same first amendment rights to speak to their patients about their diseases as I have to make the statements I do about prohibition. I would argue that the doctor should control his patient's health care rather than the government. The Hippocratic Oath says NOTHING about only using government approved medicines. S/he may be violating federal regulations, but they are doing so in order to SAVE THEIR PATIENT'S LIFE! Is the drug war so important that we are to restrict our doctors' ability to treat their patients?
Here we go again...more bait and switch arguing. More red herrings. 1. I'm not a prohibitionist. I've said here, I'd be willing to say, "ok...let's legalize mar1juana and see how that works out." I'm still prohibitionist againt the harder drugs, though. 2. YOU started the compelling interest test...and it doesn't work for the citizen. You questioned the government's compelling interest in doing this...I simply said this was not the kind of dispute that was decided on the grounds of compelling interest. 3. There are other things in force other than the Hippocratic Oath. I took an oath of office as an attorney...but there are more regulations than those I swore to uphold in the oath. Those are promulgated by the Supreme Court of Texas which monitors the State Bar of Texas. I'm thinking there are regulations that doctors are subject to relative to the states they're licensed to practice medicine in. After all, you do have to have a state license to practice medicine. I'm guessing that within those regulations it says something to the effect of, "doctors can't suggest illegal substances as remedies for their patients." Just a hunch...but I'm calling it a safe hunch.
You may not be as prohibitionist as some, but the argument you threw out was the same tripe that the prohibitionists use. It's like they repeated it so often and at such a high volume that some have started seeing their idiocy as facts. So you don't think that those patients have a compelling interest? I may not be using the term in the correct legal sense, but I would say that the patient has a legitimate interest in substances that could keep them alive. By the same token, the doctors have a legitimate interest in substances that can help their patients to regain their health. I am sure that the doctors in California (and the 7 other states that have put medical MJ laws on the books) took their oaths as well, but I have never seen a federal oath for doctors, just state ones. The medicine that they are talking to their patients about is legal under state law and, due to lack of interstate commerce, those are the only laws that should apply. Prohibition is reaching further into our lives than the constitution allows, as time will show. Wouldn't it be nice if our doctors weren't subject to political winds and could concentrate on science?
andy -- 1. my argument is not in support of prohibition at all...the only reason why i said "it's illegal" is important is for the purpose of determining whether or not there is privilege between patient and physician. i'll state again...as simply as i can...because it is illegal activity, a doctor and/or lawyer can't suggest the illegal behavior, the client rely on it and then protect themselves under some theory of professional privilege 2. of course people have "compelling interests." but the courts don't look to the people's interests. and that isn't how you started talking about compelling interests to begin with. courts, in some circumstances, look to whether or not the state has a compelling interest in doing something. they balance that against the affected person's rights. that isn't what we're talking about here. this isn't an equal protection or due process question. it's a very technical legal question relating only to privilege. you're trying to make this into a bigger broader issue...legally, it simply isn't. 3. it may be legal under state law....but it's still illegal under federal law. and my bet would be that the regulations that governs doctors in ALL states prohibits them from prescribing any treatment that's illegal under either federal or state law. 4. interstate commerce?? huh??? now i'm really confused. congress hasn't passed a law here...the interstate commerce stuff only comes into play to justify congressional action. this is a technical legal question regarding professional privilege...you're trying to read in wayyyy too much.
I am not saying anything about having a legal basis to challenge anything. I am just saying that a doctor should not be BANNED from having an honest discussion about health care with his/her patient. No matter the guise or spin that may be applied, they are trying to take the doctor's ability to recommend viable, proven treatments to their patients, and that is wrong. When it comes down to it, after all the legal jargon, precedents, and case law, the government wants to keep doctors from having an honest discussion with their patients. It may be a technical legal question, but it still strikes me that they are trying to infringe on a doctor's right to discuss health care with their patients as well as the patient's right to get medical advice that has not been tainted by politics. I would bet against you on that. If you were able to find regs in Cali that state this, I would be impressed. Goes to state's rights. The congress passed these drug laws, which should not affect what doctors can and cannot prescribe in a certain state. Again, I am not a lawyer, so I don't know everything about the law, but I am trying to get these laws changed as they are destructive, racist, and ineffective. One thing I DO know is that we are supposed to have the right to talk about anything, even illegal, unpopular, or politically incorrect topics. Since the doctors I am referring to live in this country, they have this right as well, a right which the government is now trying to suppress.
1. You're wrong...they're not banning it. They're saying they can investigate it. That's it. Again...you're reading WAYYYY too much into this. More than is there, clearly. They simply want to be able to use those conversations as evidence in a trial. That's it. The other side said they're protected by privilege. That's what the debate is over. 2. You're missing my point entirely on the "compelling interests" stuff. And you're misstating the entire substance of the debate. 3. I don't know that I have time to check Calif regs...not sure they'd even be on the internet, but who knows. You're welcome to take a look too. My guess would be that the regulation would be vaguely worded saying something like, "Doctors may not prescribe any treatments that are illegal" or something like that. 4. THE DRUG LAWS AREN'T AT ISSUE HERE!!! Again..you're missing the point. What is at issue is the patient/doctor privilege and its scope. 5. You do NOT have an absolute right to free speech, as much as you might like to think otherwise. You simply don't. And you never have. BUT...this isn't even a free speech issue, as I see it. It's a privilege issue. The government isn't saying you can't say it...they're saying that if you do say it, they want to be able to use your own words against you in court. The federal government is saying that the drugs are illegal in the United States of America...and, thus, doctors in the USA who sanction or encourage their use should be reprimanded. Those are the key issues as best I can tell. I personally enjoy how you jump from states right to federal interest so easily among thread topics. I'd gladly welcome you to the states rights side of the abortion debate!
