A Physician’s First Amendment Right to Recommend Medical Marijuana

By: Melissa Chapaska

As of November 2016, 28 states and the District of Columbia have legalized marijuana for medical use.  Each state has a different method for implementation and regulation of its medical marijuana program; however, regardless of the method, physician involvement is necessary for a medical marijuana program to thrive.  For instance, through its law and regulations, Pennsylvania specifically empowers physicians to research, recommend, and advocate for medical marijuana.

Under Pennsylvania’s medical marijuana law, a physician may register with the Department of Health for authorization to certify patients to use medical marijuana. The law of the Commonwealth provides that certifying physicians will not “be subject to arrest, prosecution or penalty in any manner, or denied any right or privilege, including civil penalty or disciplinary action by a Commonwealth licensing board or commission.”  Despite state support, physicians may still be wary of their duty to adhere to the federal Controlled Substances Act (CSA), which prohibits physicians from prescribing Schedule I substances, including medical marijuana.  For this reason, it is important that physicians are aware of their rights as they consider medical marijuana as a treatment option for their patients.

Prescribing: A Physician’s Duty

In order to prescribe controlled substances, a physician must register with the U.S. Drug Enforcement Agency (DEA) and comply with the CSA.  The CSA prohibits physicians from prescribing Schedule I substances, including marijuana, unless the substance is dispensed as part of a federally-approved research program.  Under the CSA, a “prescription” is defined as “an order for medication which is dispensed to or for an ultimate user but does not include an order for medication which is dispensed for immediate administration to the ultimate user.”  The Attorney General may revoke a physician’s CSA registration if the physician commits acts that render the physician’s registration as “inconsistent with the public interest.”

Prescriptions vs. Recommendations: What’s In a Name?

Despite the CSA’s prohibition on a physician’s ability to prescribe medical marijuana, states that have legalized medical marijuana authorize physicians to recommend or certify marijuana as a medical treatment for a patient suffering from a serious illness.

Unlike a prescription, a certification does not allow patients to directly obtain marijuana.  For example, in Pennsylvania, a physician certification will permit a patient to apply to the Department of Health for a state-issued identification card, which will allow the patient to purchase the medical marijuana from state-licensed dispensaries. The physician’s role in certifying a patient to use marijuana is to determine whether “[i]n the practitioner’s professional opinion and review of past treatments, the practitioner determines the patient is likely to receive therapeutic or palliative benefit from the use of medical marijuana.”

While the differences between a prescription and certification seem trivial, the distinction is important for physicians wishing to treat their seriously ill patients with medical marijuana while remaining in compliance with the CSA.

Recommending: A Physician’s Right

The distinction between a physician’s duty to adhere to the CSA and a physician’s First Amendment right to recommend medical marijuana was established by the Ninth Circuit ruling in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002).  The Conant case followed California’s passage of Proposition 215, the Compassionate Use Act of 1996, which gave seriously ill Californians the right to obtain and use marijuana as a medical treatment. The Compassionate Use Act specifically protected physicians: “[No] physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.”  However, following passage of California’s Compassionate Use Act, the Director of the Office of National Drug Control Policy issued a policy declaration that a doctor’s recommendation or prescription of “Schedule I controlled substances is not consistent with the ‘public interest,’” and that such action would lead to revocation of the physician’s registration to prescribe controlled substances.  Following this policy declaration, patients suffering from serious illnesses and physicians licensed to practice in California filed suit seeking to enjoin the government’s enforcement policy.

As a result, the district court in Conant v. McCaffrey, 2000 WL 1281174 (N.D.Cal. Sept.7, 2000) issued a permanent injunction enjoining the federal government from revoking a physician’s license and/or investigating a physician where the basis for the government’s action is solely the physician’s professional recommendation of the use of medical marijuana.  The government appealed to the Ninth Circuit, arguing that physicians, as members of a regulated profession, surrender certain First Amendment rights. The Ninth Circuit disagreed: “To the contrary, professional speech may be entitled to ‘the strongest protection our Constitution has to offer.’”

The Ninth Circuit in Conant v. Walters was clear that a recommendation for medical marijuana was not the same as a prescription for medical marijuana and was not inconsistent with the public interest warranting  revocation of a physician’s registration.  The Ninth Circuit further found the possibility that the physician’s recommendation might encourage a patient to engage in illegal conduct was not a legitimate justification for restricting a physician’s First Amendment right to discuss and recommend marijuana as a treatment option.  Ultimately, the court held that the federal government cannot punish, or threaten to punish, a doctor merely for recommending medical marijuana as a treatment.  Speaking to the federal versus state law conflict, the court further opined:

Our decision is consistent with principles of federalism that have left states as the primary regulators of professional conduct. We must “show [ ] respect for the sovereign States that comprise our Federal Union. That respect imposes a duty on federal courts, whenever possible, to avoid or minimize conflict between federal and state law, particularly in situations in which the citizens of a State have chosen to serve as a laboratory in the trial of novel social and economic experiments without risk to the rest of the country.”

The government appealed the Ninth Circuit ruling; however, the Supreme Court of the United States declined to hear the case. While neither the remaining Circuit courts nor Supreme Court have weighed in on a physician’s right to recommend marijuana, since the Ninth Circuit decision in Conant more than 14 years ago, the federal government has not attempted to act on its originally proposed enforcement policy against physicians for issuing medical marijuana recommendations to patients and thousands of physicians have since issued recommendations or certifications for patients to obtain medical marijuana.