JURIST Guest Columnists James G. Hodge, Jr. of the Sandra Day O’Connor College of Law, Arizona State University and Sarah A. Noe of the University of Pennsylvania Law School discuss the recent national call for a Presidential state of emergency in response to the opioid epidemic gripping the nation…

On July 31, 2017 President Donald J. Trump’s White House Commission on Combating Drug Addiction and the Opioid Crisis issued its interim report calling for the President to immediately declare a national state of emergency in response to an epidemic that is devastating individuals and communities across the country.

Led by New Jersey Governor Chris Christie, the Commissioners (including Governors from North Carolina and Massachusetts) see no other viable legal option to better implement existing and innovative public health approaches to control this epidemic. Like many law- and policy-makers, we agree.

The Spiraling Opioid Crisis

In a 2016 Gallup poll, approximately 43% of Americans believed overuse of opiates constitutes a crisis (or a very serious problem) in their local communities. From 1999 (largely considered the inception of the modern epidemic) to 2016, approximately 600,000 lives have been lost to abuse and misuse of these drugs in prescription (e.g. oxycodone, morphine, methadone, codeine) and illicit (e.g. heroin, furanyl fentanyl) forms.

According to the Centers for Disease Control and Prevention (CDC), 1,000 abusers are admitted to emergency departments across the US each day. Nearly 150 Americans die per day (or about 1,000 each week) from opiate addiction. Many of these persons never make it to hospitals or receive meaningful treatments. With a US health care system that fails to provide access for thousands to essential substance abuse services, some are denied care altogether.

The high profile death of Prince in 2016 reflects the magnitude of this public health crisis. Absent major upgrades and resources to support efficacious public health interventions, it will only get worse. Millions of current users (and their family members and friends) will continue to be plagued by physical and mental injuries and the constant threat of lost lives. The next generation of users is already at risk. In 2015 nearly 300,000 adolescents and teens ages 12-17 used prescription pain relievers for non-medical purposes, as well as illicit opiates. Overseas shipments of street drugs, including direct mail-orders of the killer designer drug, furanyl fentanyl, are arriving from China and elsewhere.

In addition to mega-societal costs in terms of lost productivity, externalities of widespread opiate abuse include additional negative health impacts and disabilities. Repeated uses of addictive opiates over time carry long-term impacts on physical and mental health even well after patients are clean.

Spread of serious infectious diseases is also tied to opiate use. In 2015, for example, elderly persons’ sharing of prescription opiates with younger persons in rural Scott County, Indiana contributed to dozens of HIV infections via injecting drug use. Then Governor and current Vice President Mike Pence was forced declare a state-based public health emergency to facilitate access to needle exchange programs for area residents.

Insufficient Public and Private Sector Responses

Unlike other types of health emergencies, such as Ebola in 2015 or Zika in 2016, the opioid epidemic has not snuck up on an unsuspecting public. Americans have been experiencing this train wreck for over 18 years through four Presidential administrations. Fueled by rampant over-prescribing practices and black markets for illicit drugs, opiate use proliferates. Everyone knows someone at risk; many have felt losses among their families or friends.

Governmental authorities have responded in kind. Multiple federal, state, and tribal agencies are already conducting or supporting significant treatment, screening, and surveillance efforts. The Food and Drug Administration (FDA) is urging private sector development of alternatives to existing opiate-based painkillers. CDC is pleading with doctors to cease over-prescribing. Customs and Border Control agents are making busts to stem the flow of opiates. Law enforcers have shifted from prosecuting minor offenses to targeting dealers and unscrupulous doctors engaged in massive schemes to share these drugs with persons who do not need them for pain management. Emergency medical technicians (EMTs) and lay persons are using life-saving naloxone without fear of potential liability.

Governors in 6 states [PDF] (AK, AZ, FL, MA, MD, and VA) and multiple tribal leaders [PDF] have already declared states of emergency specifically to quell the epidemic. Larger cities like New York, Los Angeles, Chicago, and Phoenix are spending millions of federal, state, and municipal dollars to combat the daily carnage. By comparison rural areas can only devote fractions of these amounts to address opiate use in their communities despite considerably higher rates of lives lost per capita in small towns.

Time for a Declaration of National Emergency

Although public and private efforts are purposeful, they remain insufficient. Widespread opiate access is already one of the deadliest threats to the public’s health in modern history. It is time for President Trump to label this crisis what it really is: a public health emergency with national security implications and devastating impacts for Americans. As recommended by the Commission, a national emergency declaration can positively change the legal and policy landscape to:

• reimburse state Medicaid programs to cover treatment facilities, opening up access to care to tens of thousands in existing facilities across the country;

• instruct doctors in proper practices in pain management for prescribing opiates;

• expand access to, and funding for, existing and new medication-assisted treatment (MAT) through the National Institutes of Health (NIH);

• generate model legislation for states to facilitate law enforcement officials’ access to life-saving naloxone for affected individuals;

• couple naloxone with high-risk opioid prescriptions for patients seeking remedies for their pain; and

• waive existing provisions of federal law that inhibit effective responses, including privacy laws derailing providers from reviewing public health data across states on fraudulent prescription practices and opioid abusers.

These recommendations are an excellent start, but a national emergency raises additional opportunities. As per prior declarations, it compels public and private sectors to coordinate essential preventive measures. National emergencies are often a catalyst for substantial infusions of funding desperately needed by state, tribal, and local governments to implement proven measures and try new ones. Hospitals, clinics, EMTs, and health care workers require more training, treatments, universal safety equipment, and expertise to immediately improve outcomes for patients.

Americans already hooked on opiates need assurances that government is seeking proven and emerging paths to improve their health and save their lives. A declaration may also serve as a national alert for millions more to avoid the scourge of opiate addiction altogether.

Conversely, civil libertarians and others may be concerned about the potential for a national emergency to usher in overly paternalistic interventions via government. This is always possible. Who can forget Governor Christie’s reckless administration of quarantine powers in New Jersey during the Ebola outbreak in October 2015, or his promise to consider the quarantine of Zika patients in 2016 despite a lack of public health efficacy for either measure? What President Trump may actually endorse or authorize to combat opiates is a sobering question. Heavy-handed public health interventions may predictably be pursued by a federal administration seeking rapid results following its recent failures to reform national health care.

Still, the current circumstances are too dire to ignore a national plea for emergency interventions. In 2015 more than 38% of Americans used prescribed opioids. Given the strong correlation of persons engaged in prolonged use of opioids becoming addicted, millions more are at risk. Within constitutional constraints, President Trump is empowered to positively improve the health and security of millions of Americans through a timely declaration and resulting, bipartisan uses of emergency powers and resources.

James G. Hodge, Jr., JD, LLM, is Professor of Public Health Law and Ethics, and Director, Center for Public Health Law and Policy at the Sandra Day O’Connor College of Law, ASU. Sarah Noe, BA (2017) is a JD candidate (2020) at the University of Pennsylvania Law School.

Suggested citation: James G. Hodge, Jr., Sarah A. Noe, The Call for a National Emergency in Response to the Opiate Epidemic, JURIST – Academic Commentary, Aug. 8, 2017, http://jurist.org/forum/2017/08/Hodge-Noe-opiate-epidemic.php