Conant v. Walters

309 F.3d 629 (9th Cir. 2002)


This case stemmed from an appeal for a permanent injunction entered to protect doctor’s First Amendment rights. Specifically, the case revolved around the federal government revoking a physician’s license to prescribe controlled substances which in this specific instance referred to the physician’s professional “recommendation” of the use of medical marijuana. 


Plaintiffs were patients suffering from serious illnesses. The physicians, in this case, were licensed to practice in California and to treat patients with serious illnesses. Both plaintiff and the prescribing doctors were members of larger medical organizations. The patient organization is Being Alive: People with HIV/AIDS Action Coalition, Inc. The physician’s organization is the Bay Area Physicians for Human Rights. 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.


The question that the 9th circuit looked at was very specific. The question was, is the government’s policy of investigating doctors or initiating proceedings against doctors only because they “recommend” the use of marijuana an infringement of the patients and the doctors’ First Amendment rights?


The Court, in this limited analysis, explained, that the First Amendment right extended to patient-doctor relationships and allowed physicians to discuss the medical benefits of cannabis in certain scenarios. The Court writes, “The doctor-patient privilege reflects “the imperative need for confidence and trust” inherent in the doctor-patient relationship and recognizes that “a physician must know all that a patient can articulate in order to identify and to treat disease; barriers to full disclosure would impair diagnosis and treatment.” Trammel v. United States, 445 U.S. 40, 51, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980). The Supreme Court has recognized that physician speech is entitled to First Amendment protection because of the significance of the doctor-patient relationship.”

The Court goes on to explain that the state controls the regulations of doctors, not the federal government. The Court expressly states, “principles of federalism that have left states as the primary regulators of professional conduct.” The Court goes on to write, “We must “show respect for the sovereign States that comprise our Federal Union. That respect imposes a duty on federal courts, whenever possible, to avoid or minimize conflict between federal and state law, particularly in situations in which the citizens of a State have chosen to serve as a laboratory in the trial of novel social and economic experiments without risk to the rest of the country.”           

Main Takeaways

  1. Federalism is an important aspect to arguing on behalf of state legislative rights. When arguing the legality of a state regulations, start with the presumption that the state-specific regulation presides.
  2. Medical marijuana consultations are protected by the First Amendment.
  3. Physicians should look expressly at the use of Medical marijuana for patients who do not respond well to other available prescription drug as there is “scientific data indicate the potential therapeutic value of cannabinoid drugs, primarily THC, for pain relief, control of nausea and vomiting, and appetite stimulation”.

Alexander Hymowitz
New York Law School | + posts

Alexander is a third-year law student at New York Law School. Alex is interested in the legacy market, social-equity and regulatory scheme differences between states.