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Supreme Court Cites Doctors’ Medical Marijuana Free Speech Rights In Abortion Case



Under a federal circuit court ruling, physicians in the U.S. have generally enjoyed the right to discuss medical marijuana with their patients without fear of being punished by the government. In a ruling on Tuesday, the U.S. Supreme Court affirmed those protections.

Sort of.

In a case concerning a California law that requires clinics that treat pregnant women to provide patients with certain notices concerning the availability of abortion services, the court wrote:

“The dangers associated with content-based regulations of speech are also present in the context of professional speech. As with other kinds of speech, regulating the content of professionals’ speech ‘pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.’ Take medicine, for example. ‘Doctors help patients make deeply personal decisions, and their candor is crucial.’ Throughout history, governments have ‘manipulat[ed] the content of doctor-patient discourse’ to increase state power and suppress minorities:

“‘For example, during the Cultural Revolution, Chinese physicians were dispatched to the countryside to convince peasants to use contraception. In the 1930s, the Soviet government expedited completion of a construction project on the Siberian railroad by ordering doctors to both reject requests for medical leave from work and conceal this government order from their patients. In Nazi Germany, the Third Reich systematically violated the separation between state ideology and medical discourse. German physicians were taught that they owed a higher duty to the ‘health of the Volk’ than to the health of individual patients. Recently, Nicolae Ceausescu’s strategy to increase the Romanian birth rate included prohibitions against giving advice to patients about the use of birth control devices and disseminating information about the use of condoms as a means of preventing the transmission of AIDS.’

“Further, when the government polices the content of professional speech, it can fail to ‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’ Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields. Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of divorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform.”

(Bolded emphasis added and citations omitted.)

While the First Amendment case at hand, National Institute of Family and Life Advocates v. Becerra, doesn’t directly concern doctor-recommended medical cannabis, the broad thrust of the ruling does uphold free speech rights for physicians. And one legal expert said that the specific mention of marijuana in the court’s opinion should provide some extra assurance to practitioners who focus on the drug’s medical benefits.

“Given the modern politics of marijuana reform, I was not that worried that the Ninth Circuit’s work in Conant v. Walters would be undermined anytime soon,” wrote Douglas Berman, a law professor at Ohio State University, who first spotted the cannabis passage in the new ruling. “But it would not be too hard to imagine Attorney General Jeff Sessions or other state or federal officials resistant to marijuana reform trying to heavily regulate how medical professional can talk to patients about marijuana. This new SCOTUS precedent would seem to limit any such possible efforts.”

That earlier case, Conant. v. Walters, stems from the Clinton administration’s threat, following passage of the first successful state medical cannabis laws, to rescind prescribing licenses from physicians who recommended marijuana to patients. Advocates sued and won an injunction from a district court in 2000, which was affirmed by the Ninth Circuit 2002.

While the Ninth Circuit Court of Appeals ruling technically only applies to the nine states under its jurisdiction, the federal government never appealed the case to the Supreme Court, likely because it suspected it would lose.

Now, in an opinion written by Justice Clarence Thomas, who was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito and Neil Gorsuch, the high court has singled out medical marijuana as something that doctors and nurses should be able to disagree with one another about without being punished by the government.

Supreme Court Justice Partied With Marijuana

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Tom Angell is the editor of Marijuana Moment. A 20-year veteran in the cannabis law reform movement, he covers the policy and politics of marijuana. Separately, he founded the nonprofit Marijuana Majority. Previously he reported for and MassRoots, and handled media relations and campaigns for Law Enforcement Against Prohibition and Students for Sensible Drug Policy.


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