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Excerpted From: Jennifer D. Oliva, Policing Opioid Use Disorder in a Pandemic, 11/16/2020 University of Chicago Law Review Online 90 (7 Footnotes) (Full Document)

JenniferDOlivaThis Essay examines the federal government's pandemic-provoked waiver of certain legal and regulatory barriers to evidence-based opioid use disorder (OUD) therapeutics, aimed at enhancing access to treatment while mitigating the risk of COVID-19. OUD is a highly stigmatized, chronic neurological disease with a poorly understood etiology. The prevailing approach in the United States has been to criminalize individuals with use disorder. U.S. drug policy has long been dominated by the antiquated view that OUD is a deviant moral failing that deserves prosecution, instead of a complex health care condition that demands evidence-based treatment. The persistence of such anti-scientific theories motivated the federal government's creation of a surveil-and-supervise regulatory regime that isolates OUD treatment from the traditional health care delivery system. That regime continues to prioritize the policing of individuals with OUD over the provision of expansive access to care.

Prior U.S. drug crises were attributed to the alleged immoral nature of certain racial and ethnic minority groups. By contrast, the country's current drug use and overdose dilemma has been characterized as a predominantly rural and suburban White American problem instigated by clinical overprescribing and the aggressive and fraudulent marketing of opioid analgesics. This popular narrative, which shifts blame for use disorder from the White “victim” to unscrupulous prescribers and Big Pharma, changed the focus of the solutions rhetoric from policing and punishment to public health interventions. Consequently, when the novel coronavirus began to sweep over the United States in the early months of 2020, federal health officials were amenable to policies aimed at enhancing access to OUD treatment. Federal agencies quickly waived several of the rigid legal requirements that attend to OUD treatment--and that have long obstructed access to OUD therapeutics--at the inception of the COVID-19 national health emergency.

The federal government's decision to waive certain access to treatment barriers for individuals with OUD was a long overdue and welcome development. There is no question that the agencies that oversee the draconian U.S. OUD therapeutic regulatory regime ought to make those waivers permanent post-pandemic. This Essay argues, however, that the benefits of the OUD-related COVID-19 waivers have disproportionately inured to individuals who use buprenorphine and are overwhelmingly White, at the expense of individuals who use methadone and are overwhelmingly persons of color. This is particularly problematic given that COVID-19 disparately impacts racial and ethnic minorities. This Essay also contends that the current pandemic reforms do not go far enough in eliminating access to treatment barriers. As a result, the Essay concludes by enumerating a dozen additional reforms beyond the COVID-19 waivers that the federal government and states should adopt to ensure more equitable access to evidence-based OUD treatment.

[. . .]

CDC data prove that Black, Latinx, and Indigenous Americans are more like to contract, be hospitalized with a serious illness, and die from COVID-19 than their White counterparts. Preliminary statistics from federal and state sources further demonstrate that the United States is poised to witness an extravagant number of drug overdose deaths this year and that those deaths will be disproportionately borne by the racial and ethnic minorities. While the steps that the DEA and SAMSHA have taken to enhance access to evidence-based treatment for individuals with OUD are positive public health measures, they are woefully insufficient under the circumstances. It is beyond time to abandon our restrictive, anti-science approach to OUD treatment and follow the expert guidance that has long demanded systemic reform. Lives literally hang in the balance.

Associate Professor of Law, Seton Hall University School of Law.

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