Why doctors can’t work with dispensaries: Conant v McCaffrey & Conant v Walters salient excerpts

 In Medical Cannabis

In short: By virtue of Conant, physicians are the only ones involved in medical cannabis who are legal federally, and then ONLY IF they are not aiding and abetting a patient in breaking federal law.

Conant v McCaffrey 9/7/00 – Judge Alsop


Download the full text of the Conant v McCaffrey case

Conant v Walters 10/29/02 – Judge Schroeder


Download the full text of the Conant v Walters case

Walters and the ONDCP (Office of the National Drug Control Policy or “White House Drug Czar”) appealed this to the Supreme Court, who reviewed it and decided to let the lower court ruling stand.

Below are 3 salient quotes from Conant v McCaffrey, which was affirmed in Conant v Walters

Contrary to the government’s argument, it is not true that a mere recommendation will necessarily lead to the commission of a federal offense. To the contrary, such recommendations can lead to lawful and legitimate responses. First, a cancer or AIDS victim so advised may choose to honor the federal law but, armed with the doctor’s recommendation, may urge the federal government to change that law. Petitioning Congress or federal agencies for redress of a grievance or a change in policy is a time-honored tradition. In the marketplace of ideas, few questions are more deserving of free-speech protection than whether regulations affecting health and welfare are sound public policy. In the debate, perhaps the status quo will (and should) endure. But patients and physicians are certainly entitled to urge their view. To hold that physicians are barred from communicating to patients sincere medical judgments would disable patients from understanding their own situations well enough to participate in the debate. As the government concedes, and as Mr. Vines exemplifies, many patients depend upon discussions with their physicians as their primary or only source of sound medical information. Without open communication with their physicians, patients would fall silent and appear uninformed. The ability of patients to participate meaningfully in the public discourse would be compromised. This factor alone persuades the Court that the balance of considerations ought to be struck firmly on the side of protecting sincere medical recommendations.

Second, a cancer or AIDS victim may well be able to obtain medical marijuana without violating federal law. There are three possible ways. One is to enroll in a federally-approved experimental marijuana therapy program. Another is to travel to a country where marijuana is legally dispensed. Finally, the Ninth Circuit has recently recognized the “medical necessity” defense for cannabis-club distribution of marijuana to patients requiring marijuana as a medical necessity. n7 The point is that a recommendation for marijuana therapy does not translate, as night follows day, into a violation of federal law. To the contrary, a recommendation for marijuana may lead to actions by patients all of which are lawful under federal law and some of which are themselves protected, such as petitioning the government for a change in the prohibition itself, by the First Amendment.

When a doctor recommends marijuana, a patient who is accepting of the idea may well ask how to obtain it. Here, doctors must be honest. The First Amendment is not a license to circumvent the federal drug laws. If the doctor addresses the subject, he or she must be truthful and advise on the unavailability of marijuana under the present federal drug laws and on the availability of the federal experimental programs and overseas laws (to the extent the doctor is knowledgeable).

The government is legitimately concerned that a physician might in bad faith issue recommendations that would then be used to enlarge the distribution of marijuana to those who really do not need it. From time to time, physicians registered under the Controlled Substances Act abuse their privileges, dispensing, for example, excessive controlled substances or otherwise circumventing the Act. See, e.g., United States v. Moore, 423 U.S. 122, 46 L. Ed. 2d 333, 96 S. Ct. 335 (1975). Physicians who issue insincere recommendations without a medical basis and with knowledge that they would be used to illegally obtain marijuana would be subject to DEA revocation. On the other hand, doctors are entitled to be confident that their good-faith recommendations based on honest medical judgments will not be the basis for DEA revocations even when they forsee their recommendations might be used by the patients to obtain marijuana from sources illegal under federal law.

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