Mid-Atlantic Health Law TOPICS

Immediately after the first legal medical marijuana dispensaries opened in Maryland this past December, the Trump administration issued a memo reversing Obama-era policy that allowed states to determine their marijuana rules largely without interference from federal prosecutors. The potential for renewed enforcement of federal law has made people anxious, especially doctors who face unique exposure because of their reliance on a federal license to prescribe controlled substances.

This article explores the jeopardy that Maryland doctors now face, and concludes that it is still unlikely that enforcement actions will be brought against Maryland doctors who “certify” their patients’ use of marijuana.

A.  The Conant Decision

Despite growing state legalization for medical and in some places recreational use, marijuana remains a banned Schedule I drug under the federal Controlled Substances Act of 1970 (CSA), just like LSD, heroin and ecstasy.

The Drug Enforcement Administration (DEA) oversees the CSA, and also issues licenses to physicians to prescribe controlled substances, such as prescription opioids. The DEA could investigate doctors who are involved in the marijuana industry for violations of the CSA, and one outcome of such prosecution could be the revocation of the doctor’s prescribing license which could cripple or severely limit a doctor’s practice. 

In passing medical marijuana legislation, states have generally attempted to side-step federal issues by having doctors only certify that patients can use marijuana as a treatment option, rather than prescribing the drug directly.

This critical distinction arises out of a 2002 case, Conant v. Walters, which held that the federal government cannot punish or threaten to take away a physician’s license solely because a doctor using “sincere medical judgment” recommends marijuana to help a patient. The Conant court further explained that a recommendation, when made as part of doctor-patient consultation, is protected by the free speech clause of the First Amendment of the U.S. Constitution.

While Conant is a federal appellate decision from a court that does not have jurisdiction over Maryland, Conant, nevertheless, offers strong, if not foolproof, protection to doctors writing certifications for medical marijuana. 

There are, however, limits to the Conant decision. First, doctors that are violating state law are not protected. For example, doctors have been prosecuted for writing hundreds of certifications in a short period of time, an indicator that the doctor did not meet the requirement of having a bona-fide provider-patient relationship with each person receiving certification. 

Second, Conant protects doctors who recommend marijuana, but does not protect doctors in other situations. For example, in 2014, the DEA contacted several doctors in Massachusetts, which had recently legalized medical marijuana, and told them if they did not sever their employment with dispensaries, their DEA licenses could be revoked.

B. Congressional Protections

To avoid situations similar to those in Massachusetts, Congress passed the Rohrabacher-Blumenauer Amendment in 2014. This bipartisan legislation prevents the Department of Justice from using federal funds to prevent states from implementing their own state laws that “authorize the use, distribution, possession, or cultivation of medical marijuana.”

The breadth of this amendment has not been tested in court, and does not specifically address doctors, but does demonstrate Congressional support for allowing medical marijuana industries to continue to develop. The amendment remains in effect through September 2018. 

Additionally, politicians on both sides of the aisle have offered several new pieces of legislation that would prevent federal interference in legally permitted, state medical marijuana practices. These range from keeping the federal government from interfering with whatever policy states choose to adopt to removing marijuana from the list of Schedule 1 drugs under the CSA. Any of these measures, if passed, would provide extra comfort to physicians who choose to recommend marijuana to their patients.

C.  Enforcement

Finally, the new Trump policy, authored by long time marijuana opponent Attorney General Jeff Sessions, does open the possibility of prosecution, but does not go so far as to direct federal prosecutors to increase their enforcement activities. Instead, U.S. Attorneys in each state have the discretion to determine if and how they will prioritize their resources to prosecute crimes related to marijuana.

In Maryland and other states around the country that have legalized medical marijuana, the top federal prosecutors have stated they intend to maintain a policy of non-interference. Acting Maryland U.S. Attorney Stephen Schenning noted that his office was maintaining its focus on other priorities such as violent crime. His proposed successor, Robert Kur, is still awaiting confirmation by the U.S. Senate, and both of Maryland’s Senators have indicated that they plan to determine how Mr. Kur would treat the fledgling medical marijuana industry as part of the confirmation process.

D.  Conclusion

While MedChi, the Maryland state medical society, has expressed fears that the new Trump policy may make the approximately 400 doctors who are registered to write marijuana recommendations hesitant to recommend the drug, it currently seems relatively safe for them to do so as long as the doctors adhere to the requirements of State law. Doctors should continue to monitor developments in this area as further policies could be issued by the Trump administration, increasing risk, or Congress could pass legislation, decreasing exposure.

Alexandria K. Montanio
410-576-4278 • amontanio@gfrlaw.com

A version of this article was published by The Daily Record on October 24, 2018.