As the Biden administration has promoted its intent to take a harm reduction approach to the overdose crisis, advocates have been eagerly waiting to see if that might extend to authorizing safe consumption sites where people can consume illegal substances under medical supervision. But in a blow to activists, the Justice Department is now rejecting legal arguments about possible statutory exceptions to the federal prohibition on such facilities and is moving to dismiss a lawsuit on the issue.
In a motion filed last week in a years-long legal challenge—which comes after months of negotiations that left supporters hopeful for a result that would finally allow for the opening of a safe drug consumption facility in Philadelphia called Safehouse, which was originally blocked under the Trump administration—DOJ is asking a federal court to dismiss the case.
There were lingering questions about how the Justice Department under President Joe Biden would navigate the issue, with some signs that it might cede the case and clear the way for the harm reduction strategy to proceed. That appeared to prompt Pennsylvania lawmakers to work to enact a statewide ban on the harm reduction centers, with a bipartisan bill to prohibit their operations passing the Senate in May.
Some lawmakers, including Democrats who champion marijuana legalization, have also asked the federal court to block Safehouse from opening and have asked for permission to file a brief in the case.
A coalition of 20 Pennsylvania community groups also requested that the court allow it to intervene in the lawsuit.
But in recognition of the fact that the government is now clearly defending the existing statute and opposing overdose prevention sites, the U.S. District Court for the Eastern District of Pennsylvania denied the coalition’s request on Monday.
The group’s motion that expressed concern about adequate representation by DOJ “misunderstands the Government’s current position, and the Government’s recent Motion to Dismiss seeks to enforce Section 856 by vigorously defending against Safehouse’s counterclaims,” Judge Gerald Austin McHugh wrote.
He also rejected lawmakers’ move to file an amicus brief, writing that they sought to provide input “regarding a purported settlement of this action, when in fact there is at present no prospect of a settlement.”
In its own motion to dismiss the case, filed on Friday, the Justice Department disputed Safehouse’s legal arguments that its activities should be exempt from enforcement under the Controlled Substances Act (CSA) based on religious freedom laws. It said that Safehouse is, by its own admission, not a religious organization.
Safehouse’s recently amended counterclaims in the case are “replete with allegations demonstrating that the driving rationale for its proposal to maintain a site for the supervised use of drugs is socio-political, medical, and philosophical,” the filing says. “Safehouse’s view is an individual, medical, and public health-based judgment, informed by an admittedly ongoing and serious public health crisis, but it is not a religious belief.”
“Safehouse believes that maintaining a supervised injection site for unlawful users of heroin, fentanyl, and other opioids would, in essence, do more good than harm,” DOJ said. “As Safehouse has emphasized throughout its pleading, this conclusion is not religious, but is a judgment based on Safehouse’s opinions about social circumstances and medical policy.”
“Regardless of motive, the conduct is prohibited without a provision for discretionary exemption,” it says. “For the foregoing reasons, the United States requests that its motion be granted, and that Safehouse’s Second Amended Counterclaims be dismissed with prejudice.”
Safehouse now has until August 15 to file any briefs in opposition to the Justice Department’s motion to dismiss. DOJ will then have until September 8 to respond to the organization’s arguments.
Frank James, a board member of Safehouse and a retired president of Missio Seminary, said in a statement on Tuesday that the organization is “pained that as the overdose death rate increases every year, the government is preventing us from following our deeply held religious convictions.”
“The data show that overdose prevention sites save lives, and we are committed to saving lives,” he said.
The Justice Department previously declined to file a brief to offer its position on the harm reduction issue, and it asked the court for more time to respond in the “complex” case. Last year, the department said that it was in the process of evaluating possible “guardrails” for safe consumption sites.
In January, Safehouse and the department had agreed to transfer the case to mediation before a magistrate judge to settle the issue. The talks had been described as “productive,” leaving some advocates hopeful that DOJ might drop the case altogether.
But now it’s clear that the Justice Department will be maintaining its opposition in the case.
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In October 2021, the U.S. Supreme Court rejected a request to hear a case on the legality of establishing the Safehouse facilities.
In a recent report, congressional researchers highlighted the “uncertainty” of the federal government’s position on safe drug consumption sites, while pointing out that lawmakers could temporarily resolve the issue by advancing an amendment modeled after the one that has allowed medical marijuana laws to be implemented without Justice Department interference.
While the Philadelphia facility is being held up amid litigation, New York City opened the first locally sanctioned harm reduction centers in the U.S. late last year, and officials have already reported positive results in saving lives.
The Congressional Research Service (CRS) pointed out the discrepancy, stating that while “DOJ actively opposed the operation of supervised consumption sites under the Trump Administration, to date the Biden Administration has not sought to invoke the [Controlled Substances Act] against such facilities.”
The report was published days after National Institute on Drug Abuse (NIDA) Director Nora Volkow tacitly endorsed the idea of authorizing safe consumption sites, arguing that evidence has effectively demonstrated that the facilities can prevent overdose deaths.
Volkow declined to specifically say what she would do if she were president and the Trump-era lawsuit was dropped, but she said that safe consumption sites that have been the subject of research “have shown that it has saved a significant [percentage of] patients from overdosing.”
The comments represented one of the strongest positions in favor of safe consumption sites to come from a federal official, and they’re all the more notable given the federal government’s position in the lawsuit that’s so far blocked Safehouse from providing the service.
That said, Rahul Gupta, the White House drug czar, has said that the Biden administration is reviewing broader drug policy harm reduction proposals, including the authorization of supervised consumption sites—and he went so far as to suggest possible decriminalization.
A study published by the American Medical Association (AMA) last year found that the recently opened New York City facilities have decreased overdose risk, steered people away from using in public and provided other ancillary health services to people who use currently illicit substances.
The National Institutes of Health (NIH) put out a pair of requests for applications (RFAs) in December 2021 for an effort that will provide funding for efforts to investigate how that and other harm reduction policies could help address the drug crisis.
Gupta, the director of the White House Office of National Drug Control Policy (ONDCP), previously said that it’s critical to explore “any and every option” to reduce overdose deaths, and that could include allowing safe consumption sites for illegal substances if the evidence supports their efficacy.
The secretary of the U.S. Department of Health and Human Services (HHS), Xavier Becerra, has also signaled that the Biden administration would not move to block the establishment safe injection sites, stressing that “we are literally trying to give users a lifeline.”
But a department spokesperson later walked those remarks back, stating that “HHS does not have a position on supervised consumption sites” and the “issue is a matter of ongoing litigation.” In any case, it would be up to DOJ to decide whether to pursue operators of the facilities under the CSA.
In 2021, Rhode Island’s governor signed a bill establishing a pilot program to allow safe consumption sites to operate in the state.
Bills to allow safe drug consumption sites in New York have also advanced at the committee level in both the Senate and Assembly this year.
In a pair of setbacks for advocates, however, Vermont’s governor vetoed a bill last year that would have simply created a working group tasked with crafting a plan to open safe consumption sites and the governor of California vetoed a bill last year to permit a pilot program for the harm reduction centers.
Last month, more than a dozen congressional Democrats filed a resolution to recognize the country’s “moral obligation to meet its foundational promise of guaranteed justice for all,” in part by legalizing marijuana and overdose prevention sites as well as expunging drug-related records.
Read the Justice Department’s motion to dismiss in the Safehouse case below:
Image courtesy of Dima Solomin.