The opinion of the court was delivered by: Bryant, Senior District Judge.
Before the Court is Plaintiffs' Application for a Preliminary
Injunction and Defendants' Motion to Dismiss. Plaintiffs have
requested that the Court enjoin Defendants from initiating civil,
criminal, or administrative proceedings against: 1) Plaintiff
physicians who practice medicine in states with laws allowing for
the prescription and use of medicinal marijuana and who seek to
recommend and prescribe medicinal marijuana to certain of their
seriously and terminally ill patients; 2) Plaintiff patients who
seek to obtain and use prescribed medicinal marijuana; and 3)
Plaintiff scientists who seek to consult with Plaintiff
physicians and patients regarding non-combustion means by which
to inhale medicinal marijuana. Plaintiffs assert that at press
conferences held on October 28, 1996, and December 30, 1996,
Defendants announced several ways that the federal government
could take adverse action against physicians who prescribe
marijuana and against patients who rely on such prescriptions in
those states where such prescription is legal. Plaintiffs further
assert that Defendants published that policy regarding such
action ("the federal policy") in the Federal Register on
February 11, 1997.
Currently, in several states, physician prescription or
recommendation of marijuana to terminally ill patients and
terminally ill patients' use of marijuana is lawful.*fn1 On
October 28, 1996, shortly before the passage of the medical
marijuana propositions in California and Arizona, Defendant Barry
McCaffrey ("Defendant McCaffrey") publicly stated that any
physician recommending or prescribing marijuana would be
prosecuted under federal law. On December 30, 1996, in a
nationally broadcast press conference, Defendants McCaffrey,
Donna Shalala, and Janet Reno announced the federal policy and
described several ways that the federal government could take
adverse action against physicians who prescribe marijuana and
against patients who rely on prescriptions in states where such
prescription is legal. On February 11, 1997, the Office of
National Drug Control Policy (ONDCP) published the federal policy
in the Federal Register.
Under the federal policy, the federal government may: 1)
prosecute any physician who prescribes or recommends marijuana to
patients; 2) prosecute any patient who uses prescribed marijuana;
3) revoke the DEA registration numbers of any physician who
prescribes or recommends marijuana to patients; 4) exclude any
physician who prescribes or recommends marijuana to patients from
the Medicaid and Medicare programs; and 5) enforce all federal
sanctions against physicians and patients.*fn2
II. The Parties' Requests for Relief
A. Plaintiffs' Application for Preliminary Injunction
In their Application for Preliminary Injunction, Plaintiffs
assert that the federal policy is unconstitutional for several
reasons. First, Plaintiffs state that the federal policy violates
patient and physician First Amendment rights because the speech
at issue (prescription, recommendation, and scientific
consultation) is fully protected. Therefore, Plaintiffs argue,
the federal policy is an unconstitutional prior restraint, an
unconstitutional content-based suppression of protected speech,
and is unconstitutionally overbroad.
Second, Plaintiffs argue that the federal policy violates the
Tenth Amendment because it causes all states to be "effectively
coerced and cajoled into aiding federal authorities in the
apprehension and prosecution of those who violate the [federal]
[p]olicy." Application Prelim. Inj. at 18.
Third, Plaintiffs assert that the federal policy violates the
Ninth Amendment by violating the unenumerated rights of
physicians to recommend and prescribe needed treatment to a
seriously or terminally ill patient, as well as the rights of
patients to receive such treatment.
Fourth, Plaintiffs argue that the federal policy violates the
Commerce Clause. Plaintiffs assert that because neither
intrastate recommendation and prescription of marijuana, nor the
cultivation, growth, or use of medicinal marijuana substantially
affects the channels or instrumentality of interstate commerce,
it is beyond the power of Congress or administrative agencies to
regulate such activity.
Fifth, Plaintiffs argue that the federal policy violates the
Administrative Procedures Act (APA) because it imposes two rules
of general applicability, thus final rules, without providing
adequate notice and opportunity for public comment.
Finally, Plaintiffs argue that the federal policy exceeds
ONDCP's statutory authority. The federal policy announces that
physicians who prescribe or recommend marijuana under state law
will have their DEA prescription drug licenses revoked and their
participation in Medicare and Medicaid prohibited. Plaintiffs
assert that neither the CSA nor the Social Security Act provide
the Federal government with the authority to revoke licenses or
participation in Medicare and Medicaid based upon a
recommendation or prescription for medical marijuana in
accordance with state law.
B. Defendants' Motion to Dismiss
In their Motion to Dismiss, Defendants assert several
arguments. First, they state that Plaintiffs' claims are not
appropriate for judicial resolution at this time because
Plaintiffs lack standing and their claims are not ripe for
judicial review. Defendants also note that none of the federal
agency Defendants has taken any final agency action affecting the
Plaintiffs. In addition, Defendants assert that the DEA has the
authority to revoke a doctor's registration to dispense
controlled substances for violations of the CSA.
In their Motion to Dismiss, Defendants argue that Plaintiffs
lack standing to bring this suit because federal law does not
prohibit a physician from merely discussing the risks and
benefits of medical marijuana use with a patient. In addition,
Defendants note that the Department of Justice (DOJ) has not
threatened to bring charges against doctors or scientists for
engaging in discussions about medical marijuana. Thus, Defendants
argue, in the absence of a "credible and immediate" threat of
prosecution, Plaintiffs do not have standing to bring this case.
Defs.' Mot. Dismiss at 8.
Plaintiffs challenging a statute or policy in federal court
must demonstrate that they have or will sustain some immediate
injury from the challenged statute or official conduct. See
O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d
674 (1974). However, "[b]ecause of the sensitive nature of
constitutionally protected expression, [the Supreme Court has]
not required that all of those subject to overbroad regulations
risk prosecution to test their rights. For free expression — of
transcendent value to all society, and not merely to those
exercising their rights — might be the loser." Dombrowski v.
Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).
Plaintiffs have noted that the federal policy, and thus, the CSA,
has had a chilling effect — that doctors and researchers have
been fearful of discussing the potential benefits of medical
marijuana with their colleagues and patients. While these
Plaintiffs have not been prosecuted by the government for such
actions, their fear of potential sanctions is both credible and
immediate. Therefore, this Court finds that there is enough at
stake here to determine that Plaintiffs have standing to
challenge the federal policy as it relates to enforcement of
provisions of the CSA.
However, as noted above, part of the federal response involves
the exclusion of physicians prescribing or recommending medicinal
marijuana from participation in the Medicare and Medicaid
programs. In the most recent Conant court decision, on ...