OLR Research Report

February 13, 2004




By: John Kasprak, Senior Attorney

You asked for a summary of the Ninth Circuit Court of Appeals decision in the case of Conant v. Walters, involving medical marijuana.


In an October 2002 decision, a unanimous panel of the U.S. Court of Appeals for the Ninth Circuit held that federal government threats to revoke physicians' ability to write prescriptions because they discuss medical marijuana with their patients interfered with the doctors' First Amendment rights (Conant v. Walters, 309 F. 3d 629 (9th Cir. 2002). The federal government had appealed a September 2000 permanent injunction that protected doctors' right to talk about medical marijuana, arguing that the injunction protected criminal conduct and barred its right to investigate physicians. The Ninth Circuit upheld the district court's injunction, finding that the federal government's policy improperly sought to punish physicians on the basis of the content of their communications and improperly condemned the expression of a particular viewpoint that medical marijuana likely could help specific patients.

The government petitioned the U.S. Supreme Court for review of the Ninth Circuit's decision. The petition was denied in October 2003.


In 1996, the federal government adopted a policy declaring that a physician's “action of recommending or prescribing Schedule I controlled substances is not consistent with the 'public interest' (as that phrase is used in the federal Controlled Substances Act)” and that such action would lead to a revocation of the physician's registration to prescribe controlled substances (see Conant decision, p. 6-7). This policy was adopted in response to initiatives passed in both Arizona and California decriminalizing the use of marijuana for limited medical purposes and immunizing physicians from prosecution under state law for “recommendation or approval” of using marijuana for medical purposes (see Calif. Health and Safety Code Sec. 11362.5).



Plaintiffs in this case are patients suffering from serious illneses, physicians licensed to practice in California who treat patients with serious illnesses, a patient's organization, and a physician's organization. The plaintiffs filed this action in early 1997 to enjoin enforcement of the government policy insofar as it threatened to punish physicians for communicating with their patients about the medical use of marijuana.

Federal District Court Decision

Federal district court judge Fern Smith (U.S. District Court for the Northern District of California) originally presided over the case. After receiving the parties' briefs, she issued a temporary restraining order, certified a plaintiff class, denied the government's motion to dismiss, and issued a preliminary injunction. The preliminary injunction, entered on April 30, 1997, provided that the government “may not take administrative action against physicians for recommending marijuana unless the government in good faith believes that it has substantial evidence that the physician aided and abetted the purchase, cultivation or possession of marijuana … or engaged in a conspiracy to cultivate, distribute, or possess marijuana … (Conant at p. 8).

The government did not appeal the preliminary injunction and it remained in effect after the case was transferred two years later to Judge Alsup in August 1999. Judge Alsup granted a motion to modify the plaintiff class, granted in part and denied in part the cross-motions for summary judgment, dissolved the preliminary injunction, and entered a permanent injunction. This permanent injunction “functionally the same as the preliminary injunction originally issued by Judge Smith,” according to the Ninth Circuit) permanently enjoined the government from:

(i) revoking any physician class member's Drug Enforcement Administration (DEA) registration merely because the doctor makes a recommendation for the use of medical marijuana based on a sincere medical judgment and (ii) from initiating any investigation solely on that ground. The injunction should apply whether or not the doctor anticipates that the patient will, in turn, use his or her recommendation to obtain marijuana in violation of federal law. (Conant v. McCaffrey, N.D. Cal., No. C97-00139, September 7, 2000, cited in Conant v. Walters at 9).

The federal district court went on to observe that the plaintiffs agreed with the government that a physician who actually prescribes or dispenses marijuana violates federal law. “The fundamental disagreement between the parties concerned the extent to which the federal government could regulate doctor-patient communications without interfering with First Amendment interests (see Conant v. Walters at 10).

The federal government appealed the district court's decision to grant a permanent injunction.


In its October 29, 2002 decision, the Ninth Circuit observed at the outset that this case was “litigated independently of contemporaneous litigation concerning whether federal law exempts from prosecution the dispensing of marijuana in cases of medical necessity (Conant v. Walters at 10). The appellate court continued by stating that the dispute in the district court focused on the

“government's policy of investigating doctors or initiating proceedings against doctors only because they 'recommend' the use of marijuana. While the government urged that such recommendations lead to illegal use, the district court concluded that there are many legitimate responses to a recommendation of marijuana by a doctor to a patient…By

chilling doctors' ability to recommend marijuana to a patient, the district court held that prohibition compromises a patient's meaningful participation in public discourse” (Conant v. Walters at 10-11).

Extent of the Injunction

The Ninth Circuit noted that on appeal, the government argued “that the 'recommendation' that the injunction seeks to protect is analogous to a 'prescription' of a controlled substance, which federal law clearly bars.” The appellate court stated that this characterizes the injunction

“as sweeping more broadly than it was intended or than as properly interpreted… Indeed the predecessor preliminary injunction spelled out what the injunction did not bar; it did not enjoin the government from prosecuting physicians when government officials in good faith believe that they have probable cause to charge under the federal aiding and abetting and/or conspiracy statutes” (at 11-12).

The plaintiffs, according to the Ninth Circuit, interpret the injunction narrowly, stating in their brief that the “lower court fashioned an injunction with a clear line between protected medical speech and illegal conduct…They characterize the injunction as protecting the “dispensing of information, not the dispensing of controlled substances, and therefore assert that the injunction does not contravene or undermine federal law” (at 12). The appellate court stated that holding physicians responsible for whatever conduct the doctor could anticipate a patient might engage in after leaving his office is “simply beyond the scope of either conspiracy or aiding and abetting” (at 13).

First Amendment Concerns

The court stated that the government's policy struck at core First Amendment interests of physicians 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. That need has been recognized by the courts through the application of the common law doctor-patient privilege” (at 14). It continued, “Being a member of a regulated profession does not, as the government suggests, result in a surrender of First Amendment rights…. To the contrary, professional speech may be entitled to 'the strongest protection our Constitution has to offer'” (at 15).

The court cited a recent U.S. Supreme Court case (Thompson v. Western States Medical Center, 122 S.Ct. 1497 (2002)) that addressed regulating speech about controlled substances. In that case, the Court found that provisions in the Food and Drug Administration Act of 1997 that restricted physicians and pharmacists from advertising compounding drugs violated the First Amendment. The court refused to make the “questionable assumption that doctors would prescribe unnecessary medications” and rejected the government's argument that “people would make bad decisions if given truthful information about compounded drugs” (at 15, citing Thompson v. Western States Medical Center at 1507). The Ninth Circuit stated that “the federal government argues in the Conant case a doctor-patient discussion about marijuana might lead the patient to make a bad decision, essentially asking us to accept the same assumption rejected by the Court in Thompson…We will not do so” (at 15-16).

Not only does the government's policy seek to punish physicians on the basis of content of the communications, “it condemns expression of a particular viewpoint,” that medical marijuana likely could help a specific patient. “Such condemnation of particular views is especially troubling in the First Amendment context,” the court started (at 16).

Because a doctor's recommendation does not itself constitute illegal conduct, the portion of the injunction barring investigations solely on that basis does not interfere with the federal government's ability to enforce its laws, in the court's opinion (at 14).


The federal government filed a petition with the U.S. Supreme Court in June 2003 seeking review of the Ninth Circuit Court of Appeals (see Conant v. Walters, U.S., No. 03-40, June 7, 2003). This petition claimed that review was necessary because the Ninth Circuit erred in concluding in its 2002 decision that the threats to revoke a physician's ability to write prescriptions interfered with their First Amendment rights under the U.S. Constitution. On October 14, 2003, the Supreme Court declined to review the decision and let stand the ruling of the Ninth Circuit.