The fight to open the first safe injection site in the country may go to the U.S. Supreme Court.

Legal scholar and attorney Jennifer Oliva, associate professor at Seton Hall University School of Law in New Jersey, outlined the legal battle at Tuesday’s APHA Annual Meeting session on “The Opioid Crisis Goes to Court: Litigating an Epidemic.”  

Earlier this year, the U.S. Department of Justice sued a Philadelphia nonprofit known as Safehouse to stop its efforts to open a supervised consumption facility where residents would be able to use illicit drugs under medical supervision. In October, a judge sided with Safehouse, dismissing the federal government’s argument. However, federal officials have said they would appeal the ruling. After that? The U.S. Supreme Court.

More than 120 safe injection sites are operating in Europe, Australia and Canada, and over 100 evidence-based, peer-reviewed studies have proven the positive impacts of such sites, according to Oliva. These include getting more people into addiction treatment, reducing the amount and frequency of drug use, reducing the kinds of risky behaviors that heighten hepatitis C and HIV risk, and preventing fatal overdoses.

“No one has ever died in one of these facilities,” Oliva told session attendees. “But why is the standard saving lives? If we’re talking about harm reduction, the standard we [have to meet] is so extraordinary that you have to have this argument of ‘we’ve never failed,’ instead of ‘this is a huge improvement over the situation on the ground.’” 

In the Safehouse case, the federal government tried to use the so-called “crack house” statute of the federal Controlled Substances Act, which makes it a felony to knowingly own, lease, rent, use or maintain a location for the purpose of manufacturing, distributing or using a controlled substance. However, the judge agreed that Safehouse’s purpose would be to reduce the harm of drug use, administer medical care and encourage drug treatment, not facilitate drug use.

Oliva said she’s “very scared” about what’s going to happen during the appeal in the Third Circuit Court of Appeals. 

“Every other court that has decided this issue has agreed with the government,” she said, noting that the Philadelphia judge stands alone in his ruling in support of Safehouse. “We’re flying on a wing and prayer to that third circuit.”

Oliva said she’s concerned the case could be headed to the Supreme Court — or as she called it, the “danger zone.” But even if it does, there’s still hope. Case in point: Justice Clarence Thomas has repeatedly said that the federal Controlled Substances Act is unconstitutional, she said. In addition, the act includes a provision that provides immunity to state and local officials who violate the act through the course of law enforcement, such as when police officers set up controlled drug buys. Oliva and others argue that the same provision could also give immunity to public health professionals working to save lives at safe injection sites.

Photo by GMVozd, courtesy iStockphoto