Updated: Aug 13
Editor’s Note: Today’s post comes from contributing editor Brooks Hudson, a PhD student in history at Southern Illinois University.
Last summer, Joe Biden attended a ritzy fundraiser at the Carlyle Hotel for New York donors, where he promised the ultrarich “nothing would fundamentally change.” Since then, his decisions have reflected this sentiment, honoring past administrations’ allegiance to revolving-door-politics, handing out cabinet seats to a who’s who of corporate America, and plucking various candidates from private equity, the arms industry and K-Street. Even his continuation of Trump’s herd immunity, open-everything-up strategy for coronavirus indicates he will keep that promise of “nothing will fundamentally change,” apparently content to preside over the country’s long-term decline.
Throughout the election, media outlets largely avoided scrutinizing Biden’s record, especially as it related to drug policy, with reporters acting much closer to campaign surrogates than journalists, often playing defense for the Biden team. The Washington Post, Vox, Politico, and the New York Times all made the preposterous assertion that Biden apologized for his cruel, single-minded focus on prison and punishment during his time in the Senate. But apart from giving a couple half-hearted non-apology apologies that sounded reminiscent of “mistakes were made,” Biden has never fully taken responsibility for the lives he destroyed, or the incalculable harms he inflicted on millions of Americans.
Equally unwarranted was the positive attention that Biden’s opioid proposal received. Outlets falsely claimed Biden views “addiction” as a health issue and no longer wants to pursue punitive approaches to drugs. German Lopez, senior reporter for Vox, even went as far as labeling Biden’s opioid plan as “ambitious.” To be clear, Biden’s agenda doesn’t guarantee treatment, doesn’t end punishment, and doesn’t include the most effective evidence-based methods for reducing overdose deaths. His plan isn’t ambitious; it’s not even good.
Since opioids are one policy area where Biden will want to show some action, it’s worth looking into the details of his plan. First, what do we mean by crisis? The campaign defines it primarily in terms of overdose deaths, which have spiked during the pandemic, although this is the result of fentanyl and heroin use, rather than prescription opioids.
If Biden wants to reduce overdose deaths, there are some straightforward and cost-effective measures he could embrace, the most obvious being allowing cities to open safe injection sites. This option, however, is omitted from Biden’s plan, despite the fact that every medical study on the efficacy of safe injection sites has shown they result in a reduction in overall deaths.
Even the American Medical Association found, “Studies from other countries have shown that supervised injection facilities reduce the number of overdose deaths, reduce transmission rates of infectious disease, and increase the number of individuals initiating treatment for substance use disorders without increasing drug trafficking or crime in the areas where the facilities are located.”
In 2019, Biden attended an opioid panel along with Jeb Bush, designed as a get-together for leaders to come up with solutions for combating the opioid crisis. Nothing from the session should give anyone hope Biden plans to move in the direction of reformers. On several occasions Jeanmarie Perrone, a professor of emergency medicine at Penn, and Philadelphia Mayor Jim Kenney talked at length about the necessity and evidence for creating safe injection sites. But according to the Philadelphia Inquirer, Biden and Bush went silent during this portion. When they did speak, their policy priorities were basically the same, and none were particularly evidence-based.
For instance, Biden offered up ideas that haven’t worked, including using the federal government to dictate lower levels of opioid prescribing. This completely overlooks the dramatic reduction in prescription opioid rates, now at their lowest level in decades, while at the same time overdose deaths have continued to rise. For pain patients, who have been negatively impacted by these trends, Biden mustered little empathy, stressing that “a little pain is not bad,” sounding a lot like Jeff Sessions, who said around the same time “people need to take some aspirin sometimes and tough it out.”
While there’s no reason to assume that, left to his own devices, Biden will do the right thing, there is a chance he can be guilted into taking some small but sensible actions. For example, there is ongoing litigation by a Trump-appointed prosecutor in Pennsylvania preventing Safehouse, a nonprofit, from opening a safe injection site. In court, the prosecutor has quoted Biden at length, and the crux of the case hinges on the intent and meaning of the 1986 Crack House statute, which Biden wrote. By removing the federal government from this legal battle, Biden could distance himself from the Trump administration’s policy on opioids and redeem some of his own failures.
On the treatment side, Biden’s plan can be reduced to “I’ll do something about Obamacare.” Again, there are better solutions to meet the urgency of the moment. Biden could use the Controlled Substances Act to de-schedule buprenorphine, make naloxone over the counter, and, while it is unlikely, allow for prescription heroin and morphine. David Dayen, editor at the American Prospect, has pointed out the ACA expanded Medicare for All to the residents of Libby, Montana, due to their exposure to hazardous airborne asbestos from a vermiculite mine. Dayen writes, “The primary pilot program in Section 1881A is the Libby, Montana program. But the executive branch is also given the authority to establish ‘optional pilot programs’ to any area subject to a public health emergency declaration.” While Dayen envisions its use for combatting coronavirus, it could similarly apply to the “opioid crisis.”
Nothing imaginative like that appears in Biden’s plan. Even some of the better measures such as his promise to stop practices like first fail and prior authorization are thoroughly inadequate, unless “stop” means an outright ban. “First fail” policies involve insurance companies demanding patients prove a cheaper option failed before being allowed to return to whatever medication or treatment they relied on. In effect, insurance companies require that a patient’s medical condition deteriorate before they can seek the best treatment option.
Prior authorization is an even bigger headache; one psychiatrist recently deemed the practice “illegal, unethical, and adversely disrupting patient care.” Dr. Henry Nasrallah went on to add in the pages of Current Psychiatry that it is “a despicable scam,” a “national racket” that “has inflicted great harm to countless patients, demoralized physicians, and needlessly imposed higher costs in clinical practice while simultaneously depriving patients of the treatment their physicians prescribed for them.”
Dr. Nasrallah argues “pre-authorization is essentially practicing medicine without a license, which is a felony.” He notes “when a remote and invisible insurance company staff member either prevents a patient from receiving a medication prescribed by that patient’s personal physician following a full diagnostic evaluation or pressures the physician to prescribe a different medication, he/she is basically deciding what the treatment should be for a patient who that insurance company has never seen, let alone examined.”
In the case of opioid treatment, health insurance companies understand these policies result in unnecessary suffering, death, and suicide. While terrible and tragic for individuals, it is part of our for-profit system, meant to generate money, not better health.
In the same way that private insurance companies practice medicine without a license, the same could be said of the Drug Enforcement Administration, which continues to investigate, bully, harass and arrest doctors, demanding that they lower opioid prescriptions regardless of the harm it inflicts on patients. An underreported phenomenon in all of this is the millions of chronic pain patients that have been forced to involuntarily taper off medications they’ve successfully used for years or even decades, leaving many in unimaginable pain, unable to maintain normal or functional lives. The war on opioids has gotten so aggressive it now entangles the elderly, veterans, and those with rare medical conditions into its web, cutting them off from medication willy-nilly, branding them as “drug seeking” individuals, leading some to resort to suicide. And much like insurance companies, law enforcement agencies pretend there is no direct connection between policy and policy outcomes.
Biden’s plan doubles-down on these strategies, requiring states that accept federal money to demonstrate the effectiveness of their prescription drug monitoring programs (PDMP). As Jennifer Oliva, writing for the Duke Law Journal, explained, “PDMPs are predominantly law enforcement investigative tools dressed up in public-health promoting rhetoric.” They are state surveillance of the most intimate kind. Clearly, they have not reduced opioid deaths. In fact, the best evidence suggests these programs have exacerbated rather than mitigated the national drug crisis. Oliva points out they also “may encourage individuals to forgo needed health-care treatment.”
Second, other negative consequences of “mandatory PDMP reporting” may include incentivizing “physicians to avoid prescribing PDMP monitoring substances, even when medically indicated.” Oliva notes in 2019 the New Hampshire Board of Medicine, “disciplined a Portsmouth physician for inappropriately restricting a chronic-pain patient’s daily dose of his long-term opioid treatment regimen and then abandoning the patient after he developed suicidal ideation stemming from inadequate pain management.”
Third, “study data link PDMP surveillance and law enforcement supply-side crackdowns on prescription drugs to the dramatic spike in illicit drug misuse and overdose.” Finally, these technologies seem to “perpetuate biases and have a disproportionate impact on underprivileged citizens, given their common roots with other kinds of surveillance of poor, immigrant, and stigmatized communities.”
In effect, these programs are merely a way for the DEA to “juke the stats,” use some numerical metric to show that rates for some prescription drugs have gone down, then claim victory, even if the numbers are completely meaningless and caused disastrous results. It is exactly the same logic as broken windows policing and stop-and-frisk, just done through electronic medical records.
Law Enforcement as Treatment
Even more galling than Biden’s desire to see increased medical surveillance is his lie that under his plan no one will go to jail for “drug use alone.” He also lies when he claims anyone arrested will be given mandatory treatment. This is not true. People in drug courts go to jail all the time: for missing curfews, for failing drug screenings or for failing to pay fines, among many other things. Drug courts are administered by judges, not doctors, so it’s not treatment. Victor Hernandez, having just gone through the drug court experience, writes in Filter Magazine “drug courts and coerced addiction treatment” are “policies that respect neither human rights nor scientific evidence.”
We don’t have to be too exhaustive here, but suffice to say there are all kinds of problems with drug courts, including judges having the ability to deny medication prescribed by a doctor, or require treatment consisting of entering NA or AA, which are religious-affiliated indoctrination programs, requiring people to accept God or a higher spiritual power, as well as instructing participants to accept they are “addicts” and teach other forms of self-hatred and disempowerment. As Hernandez explained, the best solution is to “game the system” and approach these programs as a cynical game, and simply lie under such conditions.
Overall, Biden’s opioid plan is not meant to reduce overdose deaths, help patients, or enact policies that would significantly improve the lives of those effected. Most of his plan rejects science and the weight of medical evidence. Instead of evidence-based approaches or guaranteed treatment, Biden doubles-down on all the worst and most abusive practices from the past: expansive surveillance, a greater role for law enforcement and the court system to act as surrogate doctors and deny treatment, while at the same time forcing people with or without drug problems to be subject to coercive involuntary medical treatment. Unfortunately, during the campaign, his plans were lauded rather than condemned for what they actually are: punishment disguised as treatment.