|Man Without Qualities|
Tuesday, October 29, 2002
A recent opinion from the ever-zany Ninth Circuit described in this news report will probably have a half-life best measured in months and is notable only for the supporting vote cast by the normally level-headed Alex Kozinski.
In brief, the opinion holds that although a doctor has no right to prescribe marijuana (the Supreme Court had already overturned the Ninth Circuit on that point), the government cannot revoke doctors' prescription licenses for recommending marijuana because that would violate the First Amendment. So this opinion seems to eject government regulators entirely from evaluating whether doctors' medical recommedations are in fact good medicine. And, of course, the First Amendment protects the doctor's "right" equally from both federal and state medical agencies.
The Ninth Circuit upheld a U.S. District Court's injunction prohibiting the Justice Department from revoking Drug Enforcement Administration licenses to dispense medication "merely because the doctor recommends medical marijuana to a patient based on a sincere medical judgment." The District Court's order also prevented federal agents "from initiating any investigation solely on that ground."
It helps to start with a fact whose principal significance is wholly ignored by the court, even as its opinion apparently deliberately attempts to evade it: Marijuana, for any use, is illegal under federal law - even in a state that has legalized it for any purpose, including medical uses.
A full review of the opinion (and, worse, Judge Kozinski's concurrence) reveals a logic which would also extend the First Amendment to include a doctor's right to recommend Laetrile, a quack "cancer drug." Even more bizarrely, the government could apparently be prevented from initiating any investigation solely on such grounds. Would it alarm the good judges of the Ninth Circuit to discover that the State was powerless to do anything just because, say, their cancer-ridden mother's doctor had sincerely, frankly and openly recommended that she stop taking Taxol and get herself coked up on Laetrile - maybe just because the yew trees are endangered? It doesn't seem to matter to the Ninth Circuit that the recommended act would probably violate federal law - unlike, say, a recommendation that a woman have an abortion - where the woman's right to commit the recommended act is beyond the State's power to regulate. Indeed, the Ninth Circuit found the injunction appropriate to protect a doctor's First Amendment right to free speech because the injunction provided that the government could take administrative action against physicians for recommending marijuana if 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.
The Ninth Circuit's reasoning implies that the government may not take administrative action against, say, a psychiatrist - by revoking a medical license, for example - if the psychiatrist sincerely, frankly and openly "recommends" to a patient that he resolve his pent up aggression by blowing his boss' head off with a shot gun unless the government in good faith believes that it has substantial evidence that the physician aided and abetted the murder or engaged in a conspiracy to murder. Or how about a psychiatrist who "recommends" that a patient work out all that nasty oedipal stress by having sex with the patient's child? The Ninth Circuit thinks that the State can't lift a medical license for that peccadillo unless the government in good faith believes that it has substantial evidence that the physician aided and abetted the child abuse or engaged in a conspiracy to commit child abuse. Oh, and the Ninth Circuit also makes clear that the State can't just prove that the physician anticipated the bad thing: "A doctor’s anticipation of patient conduct, however, does not translate into aiding and abetting, or conspiracy." Isn't that generous of the judges to the doctors? Too bad about the boss and the child. The opinion is replete with undifferentiated claptrap about "narrow restrictions" on physicians' speech being permitted, and equally silly assertions that the prohibition of a doctor recommending marijuana is not sufficiently "neutral" - all of which would leave equally invalid rules that would impose "administrative action" against the psychiatrist who recommended violent removal of a boss' head and/or sex with one's child. Those regulations would be as equally lacking in narrowness and "content neutrality" as are the anti-marijuana regulations the court actually overturns. In general, the court's silly patting of precedent - either out of context or while the substance of that precedence is wholly ignored - is not worth addressing. But it is a disgrace and an embarrassment.
Perhaps the Ninth Circuit thinks its new First Amendment right would only begin where the voters of California or some other State decide in their combined and popular medical wisdom expressed through a referendum to veto the federal policy against Laetrile - and maybe a panel of the American Medical Association will also have to vote to override the federal government. But, gee, none of this power of State referendums and medical bodies to override the federal government is mentioned in the Constitution's Supremacy Clause:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
But the Ninth Circuit ignores all that and says: "Our decision is consistent with principles of federalism that have left states as the primary regulators of professional conduct."
And since the right at issue is the ultra-important First Amendment right of free speech, it would seem to follow from the Ninth Circuit reasoning that there must be important First Amendment restrictions on the ability of a patient to go to court to sue a doctor for malpractice where the act in question is just a sacred recommendation - in the same way there are important First Amendment restrictions on the ability of a defamed plaintiff to obtain relief in a libel action. The Circuit Court even holds that a doctor is protected as long as he or she spoke "frankly and openly to patients," a standard far easier for a malpractice defendant to satisfy than "negligence." And since the government can't directly prohibit a sacred "recommendation," a governmental regulatory body's evaluation of the doctor's recommendation surely can't be admitted as significant evidence of malpractice or else the government’s ability to "chill" the First Amendment would be realized indirectly. Can't have that.
But why stop with doctors? Lawyers often give their clients nothing but "recommendations." It's called "legal advice." The Ninth Circuit is fully aware of the ground they are treading: "The government’s policy is materially similar to the limitation struck down in Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), that prevented attorneys from “present[-ing] all the reasonable and well-grounded arguments necessary for proper resolution of the case.” Except that the funding at issue in Velazquez did not finance recommendations to commit a crime - so Velazquez is inapposite. Is a rule that specifically prohibits a lawyer from recommending that a client steal money or commit perjury lacking in "content neutrality" and "narrowness?" Is Velazquez now to be construed as protecting lawyers who counsel their clients to commit crimes? Of course not. It is incredible one has to make this point.
Some might ask if this opinion proves that the Ninth Circuit is really off its rocker. But the answer to that question has long been beyond peradventure.
Judge Kozinski's concurrence deserves special notice. He says: "I write only to explain that for me the fulcrum of this dispute is not the First Amendment right of the doctors. That right certainly exists and its impairment justifies the district court’s injunction for the reasons well explained by Chief Judge Schroeder. But the doctors’ interest in giving advice about the medical use of marijuana is somewhat remote and impersonal; they will derive no direct benefit from giving this advice, other than the satisfaction of doing their jobs well."
What can he have been thinking? A doctor is mostly paid for his or her advice. Some doctors - "consulting physicians" - do nothing other than give and get paid for advice. These doctors often live very well, earning vastly more than the ordinary American does.
Judge Kozinski's concurrence is essentially a "cost/benefit analysis" which proceeds from - and depends on - his entirely loopy and false assertion that doctors who only recommend marijuana "will derive no direct benefit from giving this advice, other than the satisfaction of doing their jobs well." So his concurrence has no place to go but down from there.
It's a shame. In his case, it's really a shame.
FURTHER NOTE: If this were any Circuit other than the Ninth, this three-judge panel would immediately recall and reverse their own ridiculous opinion. Failing that - outside the Ninth Circuit - there would not be a chance in a million that this opinion would survive "in banc" (or, sometimes, "en banc," review - meaning review by all members (or, in the Ninth Circuit's case, more members) of the Ninth Circuit. But the Supreme Court will probably have to flick this insubstantial thing out of the casebooks - like a piece of lint off a judicial frock. Look for a prompt stay emanating from the white marble palace if the Ninth Circuit doesn't even have enough sense to issue their own pending appeal.
UPDATE: Fritz at Sneaking Suspicions may disagreee with every word of it. But am I wrong to see the wistful hope appended to his post ("Perhaps the Justice Department will respect the unified and reasonable approach taken by this Ninth Circuit panel, by not seeking review en banc or before the Supreme Court.") as suggesting Fritz's reluctant awarness that the opinion is unlikely to survive any appeal?
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