Senators Vote to Protect Doctors Recommending Medical Marijuana


A key Congressional panel just took action to protect doctors who recommend medical marijuana and patients who use it in accordance with state laws.

By a vote of 18 – 11 on Thursday, the U.S. Senate Appropriations Committee approved an amendment that reads:

“None of the funds appropriated or otherwise made available in this title shall be used in a manner that would interfere with the ability of a provider to recommend medicinal marijuana in accordance with State law, or of a patient to participate in a medicinal marijuana program consistent with such State law.”

A federal court ruling actually already protects doctors’ ability to discuss and recommend medical marijuana with their patients under the First Amendment. The so-called Conant decision by Ninth Circuit Court of Appeals was appealed by the federal government to the Supreme Court, which then denied the challenge and let the lower court’s ruling stand. As such, the regional decision is not technically nationally binding but has had the result of heavily discouraging the federal government from taking punitive action against doctors for their medical cannabis recommendations.

But advocates said the Senate measure is intended to eliminate a remaining “chilling effect” under which some doctors apparently still avoid recommending medical marijuana due to fear of being punished by having prescribing licenses or federal funding withdrawn.

“When doctors are afraid to recommend medical marijuana in accordance with state law because they think they might lose federal funding, patients are denied access to these programs,” Mike Liszewski of Americans for Safe Access told in an interview. “This amendment should ease the chilling effect, which in turn will make it easier for poor patients who rely on community health centers for their medical care to be able to obtain a medical marijuana recommendation.”

During a brief debate prior to the committee vote, Sen. Patty Murray (D-WA), the amendment’s sponsor, said the measure “makes clear that there’s nothing in this bill that would prevent doctors from recommending [medical marijuana], even those working at practices or clinics receiving federal funds.”

Some senators took exception to the move.

“I have deep respect for civil liberties and supporting states’ rights issues, but telling any agency or department not to enforce federal laws goes against legal principles here,” argued Sen. Richard Shelby (R-AL). “If Congress wants to change the medical marijuana laws, then it should go through the regular order” instead of attaching riders to spending bills.

And Sen. Dianne Feinstein (D-CA) asked, “Given the potential for differing levels of marijuana potency, and we know marijuana can be grown in different ways to enhance the hallucinogenic capacity…how can doctors truly know what they’re recommending?”

But the majority of the panel didn’t heed those concerns, approving the amendment. Its language is now attached to the appropriations bill covering Fiscal Year 2017 spending for the Departments of Labor, Health and Human Services and Education, which heads to the Senate floor.

Notably, Sen. Dick Durbin (D-IL), usually a reliable supporter of medical cannabis, voted against the amendment. He did not speak during the debate, however, so the reasons for his opposition are unclear.

The committee’s action is just its latest in a series of votes in support of cannabis policy reform.

In April, the panel voted 21-8 to bar the Department of Justice from spending money to interfere with the implementation of state medical marijuana laws, a measure very similar to language that has been approved on the House floor and enacted into law for the past two fiscal years. A week earlier, the committee approved an amendment to increase military veterans’ access to medical cannabis through the Department of Veterans Affairs by a vote of 20-10. The legislation including the veterans provision was then approved by the full Senate last month, and on the same day the House passed similar language.

Last July, the committee approved an amendment to the Department of the Treasury’s spending bill that would have prohibited the department from punishing banks and other financial institutions that work with marijuana businesses. The panel has not yet taken up this year’s version of the Treasury bill, but could do so soon.

The committee is also likely to soon consider legislation covering spending for the District of Columbia, and will have to decide whether to continue preventing the city from spending its own money on legalizing, taxing and regulating marijuana sales. The version of that bill which cleared the panel last year contained no such ban, but House-passed language blocking the city from moving forward was included in the final Fiscal Year 2016 spending package enacted into law in December.

Photo Courtesy of Teri Virbickis.

About Author

Tom Angell covers policy and politics for Separately, he serves as chairman of the nonprofit organization Marijuana Majority, which works to ensure that elected officials and the media treat legalization as a serious, mainstream issue. Marijuana Majority led the effort to get the U.S. Conference of Mayors to pass a resolution telling the federal government to respect state marijuana laws, and orchestrated the first-ever endorsement for marijuana legalization by a U.S. Supreme Court justice (John Paul Stevens). Previously, Tom worked for Law Enforcement Against Prohibition and Students for Sensible Drug Policy. (All organizations are listed for identification purposes only.)

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