NITA GHEI: The Other Opioid Crisis: How the Criminal Justice System Imperils Patients and Physicians: Law enforcement agencies have had broad powers to pursue and punish opioid prescribers, but a recent Supreme Court decision offers some hope.
In most popular depictions of the “opioid crisis,” ranging from Hulu’s “Dopesick” to Stanford physician Anna Lembke’s 2016 book, “Drug Dealer, MD,” the driving force of the crisis is physicians—who in this narrative are helpless pawns of the pharmaceutical companies—overprescribing opioids. This narrative has been taken up and repeated by politicians, law enforcement and interest groups seeking solutions to the harms caused by substance use disorder.
This narrative has at best a tenuous link to reality. It is, however, deeply entrenched in culture and widely accepted as true. As a result of this narrative, combined with ambiguous statutory language in the Controlled Substances Act of 1971 and the poorly drafted 2016 “Guideline on Prescribing Opioids for Chronic Pain” from the Centers for Disease Control and Prevention (CDC), law enforcement has had an inordinate influence in medical decision-making, as physicians desperately sought to treat patients while protecting themselves from the threat of civil forfeiture and loss of livelihood.
Because of the Controlled Substances Act’s ambiguous language, there has historically been no legal definition of “overprescription.” So matters stood for half a century, until the Supreme Court handed down its unanimous ruling in Ruan v. United States in June 2022. The decision establishes a narrow definition of what constitutes overprescribing, leaving physicians with greater discretion in their medical decision-making. But the long-term effects of Ruan on law enforcement and physician behavior remain to be seen.
Law Enforcement Discretion and Physician Uncertainty
In the decades between the Controlled Substances Act and the Ruan decision, law enforcement agencies had extraordinary latitude in their hunt for “overprescribing” physicians. This high level of discretion affected not only how the Drug Enforcement Administration (DEA) pursued the so-called war on drugs for half a century, but also how medical decisions were made for both acute and chronic care, as physicians were uncertain what behaviors would run afoul of the agency and state and local law enforcement. The DEA persisted in its focus on prescribed opioids for medical use, even as illicit drugs flooded the nation and a vast majority of the skyrocketing fatal accidental overdoses were caused by a combination of street drugs and alcohol, not by prescription opioids.
To be fair, the DEA is hot garbage.
