In what is a welcome turn of events for drug policy reformers, the dispute between the federal government and advocates for overdose prevention centers — where users consume illegal drugs under the observation of health care professionals — is playing out with striking civility.
Ferocious War-on-Drugs powers are off the table; arrests and 20-year prison sentences and the seizure of property are set aside. Instead, the US attorney in Philadelphia is asking for a declaration from the court that safer consumption spaces, such as Safehouse, a proposed facility in that city, violate federal law established to combat crack houses.
William M. McSwain, the US attorney for Pennsylvania’s Eastern District, isn’t seeking a court injunction forbidding Safehouse from opening its doors. He is simply asking US District Court Judge Gerald McHugh to declare the program illegal with no penalty imposed or threatened.
“We’re not bringing a criminal case right now,” McSwain told NPR recently. “We’re not arresting anybody. We’re not asking to forfeit property. We’re not looking to be heavy-handed.”
It’s worth noting that the plans for Safehouse exude respectability. Ed Rendell, the former Philadelphia mayor and Pennsylvania governor, is among those who joined together to incorporate the entity. Its powerful board of advisers includes Thomas Farley, the former health commissioner of New York City who now holds that post in Philadelphia, where he is responsible for stopping opioid overdose deaths. District Attorney Larry Krasner has signaled he is prepared to let the facility go forward.
Safehouse is represented by Ilana H. Eisenstein, a former US assistant solicitor general, in which role she five times represented the US government before the Supreme Court. This safer consumption space has an attorney who understands the appeals process.
In defending Safehouse, Eisenstein can rely on the edifice created by the Supreme Court’s 2006 ruling in Gonzales v. Oregon, which found that the federal Controlled Substances Act does not constrain doctors from prescribing drugs in compliance with that state’s assisted suicide law. According to a New York Times story on the decision, Justice Anthony Kennedy, in his majority opinion, wrote, “The structure and operation of the CSA presume and rely upon a functioning medical profession regulated under the states’ police powers… Oregon’s regime is an example of the state regulation of medical practice that the CSA presupposes.” The CSA, Kennedy continued, could not stop the law without effecting “a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not [intend] to alter the federal-state balance.”
In the face of Philadelphia’s opioid epidemic, Safehouse believes its doctors have the right to practice preventive medicine already used in more than 100 hundred cities in Canada, Europe, and Australia — namely keeping drug users under observation during their injections and in the immediate aftermath. Patients will overdose, but medically trained personnel administer oxygen and occasionally naloxone, a nasal spray that snaps a person back to normal breathing. No known deaths have occurred in safer consumption spaces.
The overdose prevention workers also offer counseling — which can connect users to treatment programs, housing assistance, and legal representation — and care for those suffering wounds that have resulted from hurried and careless injections made when trying to avoid detection. Used needles are discarded properly as medical waste.
The US Justice Department doesn’t view safer consumption spaces in these terms. Its complaint states categorically, “For purposes of this action, it does not matter that Safehouse claims good intentions in fighting the opioid epidemic. What matters is that Congress has already determined that Safehouse’s conduct is prohibited by federal law, without any relevant exception.”
But apparently it mattered at least a little that Safehouse claims good intentions. The DOJ is seeking no penalties and is not even trying to prevent Safehouse from proceeding with fundraising and identifying a location. Safehouse plans to open this month. Implicit in the Justice Department’s legal strategy is the notion that people of good will can differ on the state of the law and a judge should sort out the arguments. The district court will hold an evidentiary hearing to sort out the claims. It’s possible that Safehouse could open while the merits of the issue are resolved.
There is certainly an urgency. Last year, according to the Philadelphia Inquirer, more than 1,100 persons died there from drug overdoses. VOCAL-NY, part of the coalition seeking to open five pilot programs in New York State, placed this state’s death toll at more than 20,000 since Governor Andrew Cuomo first took office — a higher figure than the combined number of homicides and vehicular deaths. Donald Trump’s own administration has called the overdose epidemic a public health emergency.
The surge in overdose deaths is proof that the criminal law approach to the problem is failing. Resolution of the case in Philadelphia could greenlight overdose prevention centers across the nation. Their supporters make a convincing case that the government should let the doctors do their work.
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