In her fourth in a six-post series for Points, Siobhan Reynolds reviews the policies and judicial precedents that leave doctors unwilling to prescribe opioids to patients in pain. Reynolds focuses in particular on how federal control of the medical profession undermines the political structure of the United States and the opportunities for freedom and experimentation federalism provides.
In an earlier blog post I suggested that I would explain the reasons why physicians are loath to treat pain with opioids despite their noted efficacy; I’ve mentioned that medical professionals don’t like to admit that they are afraid to prescribe these medicines, preferring instead dole out far more dangerous non-controlled drugs on the grounds that opioids are “bad” in some special way having nothing to do with their actual utility or safety profile. In this post, I will examine how the profession developed such a seemingly irrational blind spot where opioids are concerned. This blind spot has its roots in the interpretation and enforcement of the Harrison Narcotics Tax Act of 1914 and the more recent Controlled Substances Act (initially passed in 1970).
Years ago, when I sat at my computer in my kitchen in New York City, wondering how in the world it was that doctors simply refused to effectively manage their patients’ pain, I researched the law myself.The law provided, originally, that the transfer or sale of what are now controlled drugs was henceforth illegal. Physicians were said to enjoy an exception to the rule if the
transfer was accomplished by use of a prescription and occurred in the course of the physician’s professional practice; the law allowed duly licensed practitioners with DEA certificates to freely prescribe controlled substances in their capacity as physicians. All of this sounded fine to me until I looked at court cases through which the Controlled Substances Act (CSA) has been interpreted. These cases have determined the enforcement practices permitted under the CSA.
In cases stretching back to the early part of the twentieth century, courts have interpreted the CSA to prohibit providing controlled substances to addicts as part of medical treatment. Doing so is by definition outside the course of professional practice, so treating addicts with pharmaceutical opioids is “illegitimate.” By the reckoning of the government – including the federal judiciary – an “addict” is anyone who takes opioids on a regular basis, whether s/he suffers pain or not.
More recently, the Supreme Court of the United States, in a series of cases pertaining to
the practice of assisted suicide, was asked to address the extent of federal control over medical practice. On November 9, 2001, then-Attorney General John Ashcroft issued an Interpretive Rule, known as the “Ashcroft Directive,” stating that physician-assisted suicide as permitted under Oregon’s Death With Dignity statute was not a “legitimate medical purpose” and that any physician administering federally controlled drugs for that purpose would be in violation of the CSA. The state of Oregon, a doctor, a pharmacist and several terminally ill patients took Ashcroft to court and obtained a permanent injunction against the Rule. The Justice Department persisted in its assertion that government attorneys could override the state of Oregon in deciding what was and was not the “legitimate” practice of medicine, no matter what the will of the people of Oregon.
Time and again, the courts affirmed that Oregon, and not the feds, was the proper regulator of medical practice and that state officials, acting under their police powers, determine what is or is not the lawful practice of medicine. Without the tensions created by the two loci of power, the very political structure of the United States would be lost. During this important litigation, the DOJ prosecutors made a stunning admission: they had been regulating medicine in the states by way of application of the Controlled Substances Act for the previous 50 years, overruling the sovereign power of the states as concerns the treatment of pain with controlled drugs.
This admission occurred early in Oregon v. Ashcroft 192 F. Supp.2d 1077 (2002), which was decided by the Supreme Court in 2006 as Gonzales v Oregon. When questioned by District Judge Robert Jones as to why federal prosecutors believed they possessed the authority to use the CSA to criminalize the actions of DEA registrants, otherwise empowered by Oregon state law to assist in patient suicides, the DOJ offered the following justification, citing language found in a House Committee Report discussing the possible implications of the CSA for the federal regulation of medicine, using the criminal code:
“Although the Committee is concerned about the [in]appropriateness of federal prosecutors determining the appropriate method of the practice of medicine, it is necessary to recognize that for the last 50 years this is precisely what has happened, through criminal prosecution of physicians whose methods of prescribing narcotic drugs have not conformed to the opinions of federal prosecutors of what constitutes appropriate methods of professional practice.” Defendants’ Memorandum, pp. 16-17….” (Emphasis added)
District Judge Jones offered the following rebuke:
“Defendants [DOJ] cannot seriously conclude from the above- quoted language that Congress delegated to federal prosecutors the authority to define what constitutes legitimate medical practices. [FN15] To state the proposition is to refute it. Federal prosecutors have never possessed such powers, and the vagueness of the reference would render any alleged violation based on a prosecutor’s subjective views about medical practice patently unenforceable.”
federal courts, including the Supreme Court, to apply this reasoning to cases involving the prosecution of pain-treating physicians have been entirely futile. Despite the government’s admission on the public record that it has been acting without authority to prosecute physicians who treat pain, the courts will not affirm recent unambiguous Supreme Court precedent. Judge Jones’ principled outrage notwithstanding, the simple truth is that the federal government indeed possesses the power to define what constitutes the legitimate practice of medicine. The authority they enjoy simply hasn’t been granted them by the U.S. Constitution. The feds exercise this power each time they indict and convict a doctor of serious crimes for practicing medicine in a manner inconsistent with a prosecutor’s subjective views. Many ethical and caring physicians sit in prisons all over the US, serving what amount to life sentences due to this unauthorized but widespread exercise of federal power.
Therefore, the problem remains unremedied, pain treating physicians are sitting ducks, and the pernicious effects are ongoing. Through the imposition of the private opinions of federal prosecutors, stretching over many years, the federal government has perverted the practice of medicine beyond recognition, in effect criminalizing the practice of ethical pain management.
The power of individual states to regulate the practice of medicine within their borders has been compromised; the mandate of the state’s medical boards to secure the health and welfare of their citizens, rendered inoperable by the overwhelming force of armed drug task forces, which are led and largely financed by federal agencies. State medical boards shoulder some blame, as well. The ongoing federal power grab has been in force for so long, the medical boards generally regard the DEA as expert in determining whether a physician has acted criminally and defer accordingly.
On June 16th of this year, the US Supreme Court reaffirmed its stated, if not actual, dedication to the importance of the Ninth and Tenth Amendments to the U.S. Constitution in Bond v. U.S. The Court agreed with criminal defendant Bond’s assertion that she has standing in federal court to challenge, on Tenth Amendment grounds, her conviction on a federal statute – that individuals, and not just states, have an important and self-protective stake in the sovereignty of the states. Unfortunately, it has been my sad experience that this sort of jurisprudence is more a matter of show than substance. The Supreme Court will issue all kinds of strong opinions in defense of the rights of individual Americans but will, as a practical matter, refuse to apply those decisions to future cases and refuse to overturn lower courts when they too fail to apply them.
What used to be the United States’ political structure – federalism, which decentralized power in order to leave the citizenry (and medical practice) as free as possible – has been subverted entirely: the laboratories of the fifty states have become fifty ways for doctors to loose their livelihoods and their freedom should they prescribe opioids for the treatment of chronic pain. Considering the legal realities, the medical profession’s “irrational” blind spot now appears to be a kind of institutional savvy.
The situation is so bad for doctors and for patients in pain that my deceased husband quite accurately observed of the Controlled Substances Act, “that thing isn’t a law, it’s a lobster trap.”