This post is part of a symposium from speakers and participants of Northeastern University School of Law’s annual health law conference, Diseases of Despair: The Role of Policy and Law, organized by the Center for Health Policy and Law.
All the posts in the series are available here.
By Aila Hoss
Despite the increase in rates of opioid overdose death since 1999, the Opioid Use Disorder crisis shows little signs of abating. Recent reports from the Centers for Disease Control and Prevention indicate that overdose death rates have continued to climb in recent years. These sobering reports, along with others highlighting the impact of the crisis on children and families, the increase in methamphetamine and cocaine use, and the economic costs to businesses, communities and our healthcare system remind us that “opioid addiction isn’t the disease; it’s the symptom.”
There is “no easy fix” to the social and economic determinants of health, such as poverty and housing insecurity, that are fueling this crisis. However, there are actionable, discrete, evidence-based policy measures that can be taken to reduce the rates of overdose deaths via harm reduction strategies.
Harm reduction strategies are those that minimize the injury associated with drug use, as opposed to decreasing drug use itself. In the context of opioid use disorder, these strategies include increased naloxone training and availability, syringe exchange programs, and overdose immunity protections. The evidence for these strategies have consistently demonstrated that they reduce incidence of HIV, hepatitis C, overdose deaths and do not lead to increased drug use.
And although secondary to the value of creating spaces where individuals with substance use disorder can safely access services, evidence also indicates that syringe exchange programs can also lead to increased access to treatment and are a more cost-effective measure than treating individuals with preventable injuries and illnesses.
Laws authorizing harm reduction strategies are increasingly being adopted in the United States. For example, in 2017, 49 states and DC had a naloxone access law compared to only 11 in 2013. As of 2016, 22 states and DC authorize syringe exchange programs compared to 16 the year before. In 2016, 37 states and DC have an overdose immunity law compared to 12 in 2013. Clearly, substantial progress has been made in codifying harm reduction strategies into state law. Yet, the structure and scope of these laws can also undermine the efficacy of these strategies.
Indiana provides an instructive example. The state law authorizing syringe exchange programs was passed following a devastating HIV outbreak in Scott County. It permits counties to establish syringe exchange programs when there is an epidemic of hepatitis C of HIV due to intravenous drug use and a public health emergency has been declared. Thus, the law aims to use syringe exchange programs to react to a crisis rather than prevent one. Additionally, the law only allows the program to operate for two years. Although the programs can be renewed, this makes them susceptible to political pressure to terminate the program. Only five syringe exchange programs are currently operating in a state with 92 counties, with other programs closing down in recent years.
Indiana’s drug paraphernalia law does not carve out an exception for individuals possessing syringes from syringe exchange programs. Violation of this law is a misdemeanor, but the state legislature recently amended the code to elevate the offence of possessing a syringe to a felony.
In May 2018, the Indiana Court of Appeals affirmed a lower court’s conviction of a man for possessing syringes he secured from a syringe exchange program:
“Thus, while [the defendant] could not be prosecuted for obtaining hypodermic needles from a needle exchange or participating in a needle exchange program, he could be found guilty of possession of paraphernalia if there was evidence that he intended to use those syringes for unlawful ends.”
The requirement for epidemic and public health emergency, the short duration of the programs, and the ongoing risk of criminal liability for individuals utilizing the programs are all established by law and severely limit the potential public health impact of these programs. And this is not the only example of a harm reduction strategy in Indiana whose law undermines its efficacy.
Fear of criminal liability is the primary reason discouraging individuals from contacting emergency services in an overdose situation. Overdose immunity laws provide immunity from criminal liability during these situations and evidence indicates that these laws reduce incidence of overdose deaths. However, the scope of these laws varies substantially across states in terms of the individuals that they protect (bystanders or the individual experiencing the overdose) and the type of protections provided (drug possession, drug paraphernalia, probation violations, and so on).
Indiana’s overdose immunity law applies only to the bystander in the overdose situation and only for drug possession and paraphernalia charges. Uniquely, Indiana’s overdose immunity law only provides protections to bystanders that administer naloxone to the individual experiencing an overdose. Research does not suggest that the average bystander would have naloxone readily available in such a situation, despite laws that seek to increase its access. Here again, a viable, evidence-based harm reduction strategy fails in the face of restrictive legislative language.
Unfortunately, Indiana is not unique. Many state laws fail to provide immunity for drug paraphernalia for syringes secured from syringe exchange programs and many of these programs are subject to intense political scrutiny. Similarly, only 18 states provide protection from probation and parole violations in their overdose immunity laws.
A law that supports harm reduction is better than no law at all. But, it is not enough to have law promoting a harm reduction strategy if that law is so narrow in its application that it undermines the success of the strategy. Legislatures, in passing these laws, are clearly committed to advancing harm reduction strategies. In drafting them, however, policymakers must conduct a thorough and thoughtful analysis to ensure that these laws are as impactful as possible.
Aila Hoss is a Visiting Assistant Professor at Indiana University Robert H. McKinney School of Law. With Professors Nicolas Terry and Ross Silverman, she is serving on a research team funded by the Indiana University Addictions Grand Challenge and co-authored the report Legal and Policy Best Practices in Response to the Substance Abuse Crisis.
This symposium is published in partnership with: