Massachusetts doctors, the DEA and the Conant case

As Doug noted on Friday, the DEA has apparently issued warning letters to a handful of Massachusetts doctors in connection with the implementation of the state’s medical marijuana law.  Specifically, the DEA threatened to revoke the registrations of some physicians who are involved with medical marijuana-related companies in the state.  Doing so would leave them unable to prescribe other controlled substances, like Ambian or Xanax.  

As some readers may recall, this is not the first time the federal government has threatened doctors in this way.  Not long after Californians approved the first modern medical marijuana law in 1996, then-director of the ONDCP Barry McCaffrey announced that the DEA would seek to revoke the DEA registrations of physicians who recommended medical marijuana to their patients. 

A group of California patients and doctors filed suit to enjoin the DEA from going through with its registration revocation plan.  The case made its way to the Ninth Circuit, which held that the DEA’s plan was an unconstitutional infringement on physicians’ first amendment rights in Conant v. Walters, 309 F.3d 629 (2002).   The Ninth Circuit reasoned that “[b]eing a member of a regulated profession does not, as the government suggests, result in a surrender of First Amendment Rights.”  It held that preventing physicians from recommending medical marijuana to their patients would “strike at the core of First Amendment interests of doctors and patients.  An integral component of the practice of medicine is the communication between a doctor and a patient.  Physicians must be able to speak frankly and openly to patients.”

Are the DEA’s threats to Massachusetts doctors at odds with Conant?  There are two key differences.

First, Conant was a Ninth Circuit case and Massachusetts is in the First Circuit.  For non-lawyer readers, this means that Conant is not binding on federal courts in the state.  So, even if the DEA’s threats were in clear conflict with Conant’s holding, the courts there would be free to disagree with the Contant decision.     (To be honest, I’ve always been a little bit surprised that the DEA did not continue to press the registration issue outside of the Ninth Circuit after Conant, particularly since a District Court in DC sided with the government on the issue.)    

Second, the Massachusetts doctors appear to be doing more than just recommending marijuana to patients.  According to this Boston Globe article, the doctors targeted by the DEA “are top administrators in companies approved by state regulators for preliminary medical marijuana dispensary licenses[.]”  As a result, courts may not see this as a free speech issue.  The Ninth Circuit’s recent decision upholding a California law that bans gay conversion therapy comes to mind here.  In that case, the court distinguished Conant in part by drawing a line between speech and conduct.  

This is not to say that the DEA is on firm legal footing.  A court may very well find these threats to be legally flawed, just like the Ninth Circuit did in Conant.  But it is certainly not a slam dunk, even if federal courts in Massachusetts were bound by Conant (which they’re not.)

While it’s hard to say how a potential legal challenge to the DEA’s threats would turn out, it seems clear to me that thia is a monumentally bad decision from a policy and political standpoint. 

In terms of policy, if we’re going to have medical marijuana, I can’t imagine why we would want to make it harder for physicians to be involved in the system.  In fact, we should be encouraging companies to hire on physicians as advisors and active participants. 

Politically, as Charles Pierce at Esquire put it: “The DEA Is Really Starting To Look Ridiculous.”  Threats like this make the DEA look more and more out of touch–not just with public opinion but with the DOJ’s official policy.  It makes no sense to allow recreational marijuana stores to do big business in Colorado and then turn around and threaten doctors who (by all appearances) are trying to make medical marijuana in Massachusetts function as legitimately as possible.

And, of course, the timing of this news could not be worse for the DEA.  If I were the DEA, I would be doing everything I could to lay low after the recent House vote to block DOJ funds from being used to interfere with state medical marijuana laws.  Granted, it sounds like the DEA’s made these threats before the House vote.  But the news is being released just as the DEA needs to lobby the Senate to block the House amendment from actually becoming law.

The politics alone make me think that the DEA may quietly dial back these threats.  But, if they don’t, we may have an interesting lawsuit testing the persuasiveness and limits of Contant to look forward to.