Judicial Notebook

In 1999, the Ninth Circuit (U.S. v. Oakland Cannibis Buyers' Coop., 190 F.3d 1109, 9th Cir. 1999) found a medical necessity exception to the Controlled Substances Act, 84 Stat. 1242, which prohibits intentional manufacturing, distributing or dispensing of controlled substances such as marijuana. However, two years later, the United States Supreme Court (U.S. v. Oakland Cannibis Buyers' Coop., 532 U.S. 483, 2001) overruled that finding and held that only government-approved research projects were excepted. While the Ninth Circuit was willing to allow physicians to prescribe marijuana to patients for whom all other medical remedies had failed, the Supreme Court prohibited the practice.

In an independent case, plaintiffs (patients, physicians and organizations representing both) obtained a federal injunction in the Northern District of California, prohibiting the federal government from revoking a physician's license to prescribe controlled substances or from conducting an investigation to produce that end based only on evidence that a doctor had "recommended" the medical use of marijuana (Conant v. Walters, 2002 WL 31415494, 9th Cir. 2002). In California, doctors may dispense information about medical marijuana use, but not the drug itself.

To recommend or not to recommend

The Ninth Circuit (Conant v. Walters, 2002) recently upheld the injunction, arguing that physicians and patients could make legitimate responses to recommendations for medical use of marijuana such as seeking entry tofederally approved treatment programs or planning a course of action to change the existing law. The court held that prohibiting physicians from recommending medical use of marijuana violated the physician's First Amendment right to speak freely with a patient and the patient's right to hear medical information from the doctor.

According to the Ninth Circuit, the Supreme Court recognized the doctor-patient privilege with regard to speech rights in Trammel v. U.S., 445 U.S. 40, 51(1980) and reaffirmed it in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, (1992) and again in Rust v. Sullivan, 500 U.S. 173, (1991). The Ninth Circuit went on to argue that a ban on physicians' dispensing information about marijuana constitutes content-based censorship. The court struck down the ban because it would disallow doctors' rights to communicate their views in support of medical use of marijuana to their patients and because such a content-based censorship is in violation of the First Amendment right to unfettered speech (See Rosenberger v. Rector, 515 U.S. 819, 829, 1995).

The federal government, on the other hand, argued that physicians who recommend use of a federally controlled substance for which there was no medical exception are aiding and abetting the patient in violating the controlled substance act (Conant v. Walters, 2002). If the patient does make use of the physician's recommendation to acquire marijuana, then the physician may indeed be aiding and abetting a violation of federal law. However, the Ninth Circuit argued that the physician should not be held criminally culpable for failing to anticipate the patient's actions to act illegally rather than seek to change the law or to enter a federally approved program (Conant v. Walters, 2002). In fact, the Federal District Court found that by chilling the doctor's ability to recommend the medical use of marijuana to their patients, the threat of investigation of the doctor restricts the patients' participation in the public discourse on the issue of legitimate use of marijuana.

What it means for psychology

This case has important implications for the practice and study of psychology. First, if this case stands, even without an appeal to the Supreme Court, it could broaden the doctor-patient privilege for mental health professionals working with patients who are unresponsive to conventional therapies.

Second, the issues upon which the case turned (i.e., whether patients take physicians' recommendations as license to obtain marijuana illegally and whether prohibition of the recommendation limits patients' participation in the public debate) are empirical questions that invite psychological investigation. At issue is how lay people will interpret these medical recommendations and/or bans on them.

Finally, a more general empirical issue concerns the public's interest and ability to draw a distinction between prohibitions on conduct versus speech concerning that conduct. While the courts use that distinction to allow and disallow different types of conduct, it is not clear that conceptualizations in lay justice show similar boundaries. Social, developmental and cognitive psychologists interested in influencing law and legal process could add significantly to our understanding of First Amendment law and its behavioral assumptions with studies of these issues.