In October 2003, the Unites States Supreme Court let stand a ruling by the Ninth Circuit Court of Appeals permitting physicians to recommend marijuana to patients whom they believe might medically benefit from its use. Conant v. Walters, 309 F.3d 629 (2002). Thus ended the seven-year dispute between the federal government and physicians and patients over the freedom to discuss medical marijuana use.
This decision is in concordance with a lower court’s rulings which, since 1997, has upheld the right of physicians (and patients) to speak openly and candidly about marijuana’s potential risks and its therapeutic benefits, and have made clear that physicians may recommend medical marijuana to patients free from federal threats or interference.
The government is not supposed to tell us what to think, which is why the government cannot place restrictions on speech keyed to the viewpoint expressed by the speaker. In a marketplace of ideas, such restrictions are the equivalent of price controls. The government isn’t supposed to set the value attached to ideas, though; that’s our job, and under the First Amendment, our right.
The government has the authority to not allow doctor’s to prescribe marijuana for medicinal purposes because it is still an illegal drug under Federal law, even for medicinal purposes.
So, why is it OK to sign a form that Patient’s are likely to benefit from the medicinal use of marijuana? A regulation on this is not allowed because it would be a viewpoint-based restriction because it punishes only doctors who recommend medical marijuana – that is, who tell patients marijuana might be good for them. It would not punish doctors who disparage marijuana as a course of treatment.
Courts have long recognized the importance of the doctor-patient relationship. While the government protects our health by regulating available courses of treatment, courts have traditionally refused to interfere in what doctors and patients say to one another, and will not assume, when reviewing such regulations, that doctors will give medically unsound advice or that patients need to be protected from what a medical professional views as the truth.