Policing Opioid Use Disorder in a Pandemic

22 Pages Posted: 7 Oct 2020 Last revised: 9 Nov 2020

See all articles by Jennifer D. Oliva

Jennifer D. Oliva

Seton Hall University School of Law

Date Written: September 21, 2020

Abstract

This essay examines the federal government’s pandemic-provoked waiver of long-standing legal and regulatory barriers to evidence-based opioid use disorder (OUD) treatment aimed at enhancing access to OUD care while mitigating the risk of exposure to COVID-19. OUD is a highly stigmatized, chronic neurological disease with a poorly understood etiology. The prevailing approach in the United States, however, has been to criminalize individuals with OUD. This is because U.S. drug policy has been long 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 about OUD motivated the federal government’s creation of a surveille-and-supervise regulatory regime that isolates OUD treatment from the traditional health care delivery system and prioritizes the policing of individuals with OUD over the provision of expansive access to care.

Unlike prior U.S. drug crises, which were attributed to the alleged immoral nature of targeted racial and ethnic minority groups, 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 substance use disorder solutions rhetoric from policing and punishment to public health interventions. Consequently, federal health officials were more amenable to policies aimed at enhancing assess to OUD treatment as the novel coronavirus began to sweep over the United States in early months of 2020. In fact, they quickly waived several of the rigid federal legal requirements that attend to OUD treatment—and 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 positive development. There is no question that the federal 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 tragic given that it was considerably easier to obtain a prescription for officed-based buprenorphine than access methadone administration treatment under the drug control regulatory regime pre-pandemic. The essay concludes by advancing a series of additional reforms beyond the current COVID-19 waivers that the federal government should adopt to ensure more equitably enhance access to OUD treatment.

Keywords: substance abuse disorder, opioid use disorder, drug treatment, drug policy, racism, telemedicine, COVID-19

Suggested Citation

Oliva, Jennifer, Policing Opioid Use Disorder in a Pandemic (September 21, 2020). University of Chicago Law Review Online (2020), Available at SSRN: https://ssrn.com/abstract=3696511 or http://dx.doi.org/10.2139/ssrn.3696511

Jennifer Oliva (Contact Author)

Seton Hall University School of Law ( email )

One Newark Center
Newark, NJ 07102
United States

HOME PAGE: http://law.shu.edu/faculty/full-time/Jennifer-Oliva.cfm

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