Why Cannabis is Legal for Medical Professionals to Recommend under state law in the US   

 

In the United States medical professionals have a legal right to recommend cannabis as a treatment in any state because they are protected by the First Amendment.  Under US federal law, cannabis may not be prescribed, but its medicinal use can be recommended under state law, without the doctor facing any legal consequences.

 

This was established in 2004 by a United States Supreme Court decision in Conant v Walter.  In this case, the Supreme Court uphold earlier federal court rulings, that doctors and their patients have a fundamental Constitutional right to freely discuss treatment options, including the use of cannabis for medicinal purposes.

 

Although medical professions can recommended the use of cannabis as a treatment option, the laws and regulations vary from state to state on qualifying an individual patient for legal protection, and also differ as to who may make the recommendation, and for what conditions, as well as how that recommendation is communicated to the appropriate state authorities, and the supplier or dispensary.

 

Conant v. Walters

 

The court ruling in 2005, that finally determined medical medical professionals in the US, were protected under the Fifth Amendment, stem from other lawsuits brought by a group of doctors and patients led by AIDS specialist Dr. Marcus Conant. Dr Conant's first lawsuit was filed in response to federal officials who, had within weeks of Californian voters legalising medical cannabis in 1996, threatened to revoke the prescribing privileges of any physician who recommended cannabis to their patients for medical use. [1]

 

Dr. Conant contended that such a policy would violate the First Amendment. [2, 3]

 

The Ninth Circuit Court of Appeals agreed and held that the federal government, could neither punish nor threaten a doctor merely for recommending the use of cannabis to a patient.  [4]

 

The Court set out what doctors may and may not do: 

 

• Physicians and other medical professionals may discuss the benefits and risks of medical cannabis with any patient, and

• may recommend its use whenever appropriate; and  

• may put that in writing or otherwise participate in state medical cannabis programs without fear of legal reprisal. [5]

 

It remains illegal for a doctor to "aid and abet" a patient in obtaining cannabis. [6]  Physicians may not tell patients how or where to obtain cannabis, [8] or provide cannabis directly to a patient. [7]  

 

Today over 30 states in the United States provide legal protection for qualifying patients participating in their state medical cannabis program, under the recommendation of their physician.

 

 Federal Law

 

In June 2005, the U.S. Supreme Court in Gonzales v. Raich ruled that state medical cannabis laws, do not provide protection for patients or their providers from prosecution under federal law. [8]

 

Therefore, all use of cannabis by participants in state programs remains illegal under federal law.

 

However, under the Obama Administration, the Department of Justice has issued three memos providing guidance to federal prosecutors.  Each memo indicates that individual patients and caregivers should not be priorities for federal law enforcement agencies, with the latest memo in 2015, indicating that enforcement should be left to the states, so long as they have effective regulations in place for the safe use and distribution of cannabis. 

 

References

 
1.     See "The Administration's Response to the Passage of California Proposition 215 and Arizona Proposition 200" (Dec.

        30, 1996). https://www.ncjrs.gov/txtfiles/215rel.txt.
2.     Conant v. McCaffrey, 172 F.R.D. 681 (N.D. Cal. 1997).
3.     id.; Conant v. McCaffrey, 2000 WL 1281174 (N.D. Cal. 2000); Conant v. Walters, 309 F.3d 629 (9th Cir. 2002).
4.     309 F.3d 629 (9th Cir. 2002).
5.     Id. at 634-36.
6.     Criminal liability for aiding and abetting requires proof that the defendant "in some sort, associated himself with the

        venture, that he participated in it as something that he wished to bring about, that he sought by his action to

        make it succeed. "Conant v. McCaffrey, 172 F.R.D. 681, 700 (N.D. Cal. 1997). A conspiracy to obtain

        cannabis requires an agreement between two or more persons to do this, with both persons knowing this illegal

        objective and intending to help accomplish it. Id. at 700-01.7. 309 F.3d at 634 & 636.     

7.     Conant v. McCaffrey, 2000 WL 1281174, at *16 (N.D. Cal. 2000).309 F.3d at 634.
8.     Gonzales v. Raich, 545 U.S. 1 (2005) 352 F.3d 1222.