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Medical Marijuana: Regulations Clash

Doctors are facing a dilemma: risk breaking the law or withhold a potential treatment.

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Most states, however, have their own laws regarding marijuana and physicians. Since the late 1970s, 34 states have passed laws -- 24 of which remain on the books -- that allow doctors to recommend marijuana or urge the creation of research programs on cannabis. The trouble is, state law is superseded by federal law, and the latter's position on pot is crystal clear: Marijuana is a Schedule I drug on the DEA's list of controlled substances, meaning it "has no currently accepted medical use" and cannot be prescribed under any circumstances.

Nonetheless, after the Compassionate Use Act became law, Mastroianni wrote letters recommending marijuana to three seriously ill patients. According to a source close to the case, one of these patients showed his letter to police after they pulled his son over and found a marijuana cigarette in the car. Police gave the letter to the DEA, whose agents paid a visit to the physician.

"It's a very frightening thing for a physician to be faced with," says Stephen N. Sherr, a San Francisco attorney. "On the one hand, you have the obligation to inform your patients of your knowledge of medical issues that bear on his or her case. And on the other hand, there is the potential criminal liability that could completely wipe out your career. Even if you win, going through a criminal action would be a nightmare."

That fear swept through the medical community after a 1996 news conference in which federal drug czar Barry McCaffrey called the California initiative "a Cheech and Chong show." He and Attorney General Janet Reno further warned that the Justice Department would prosecute doctors who recommend the drug. But if the government's intent was to stop doctors from discussing marijuana, the strategy backfired. The American Medical Association swiftly denounced the idea of restricting conversations between physicians and patients, and the New England Journal of Medicine declared in an editorial that the federal policy was "misguided, heavy-handed, and inhumane." The author of the piece and then Editor, Jerome Kassirer, M.D., a former professor of Mastroianni's at Tufts University, noted the government's hypocrisy in forbidding physicians from prescribing marijuana while permitting far more dangerous drugs such as morphine.

The medical backlash picked up steam in February 1997. A group of 11 physicians led by Marcus Conant, M.D., a clinical professor at the University of California at San Francisco's Medical Center and former director of the largest AIDS/HIV practice in the United States, filed suit to stop federal officials from punishing doctors who counsel patients to try marijuana.

On April 30, 1997, federal judge Fern Smith handed down a preliminary injunction in the Conant case, authorizing doctors to propose marijuana use for certain serious illnesses. Meanwhile, in Congress Rep. Barney Frank (D-Mass.) introduced in March 1999 a bill to make marijuana a Schedule II drug, meaning that, like morphine, it would be classified as a "highly dangerous" drug -- but one with "limited" medical uses. The bill would have allowed "the prescription or recommendation of marijuana by a physician for medical use," and allowed "producing and distributing marijuana for such purpose." Frank's bill had 11 co-sponsors, only one a Republican, Rep. Tom Campbell of California. The bill is still in the House Subcommittee on Health and Environment, and is not expected to make it to the House floor since the GOP is opposed to it. This is the second time Frank has tried to get such a bill approved.

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