Cruel and Unusual Pain Treatment

America's drug regulations rest on long-familiar, syllogism-like tendrils.  Drugs are dangerous.  Users can harm others.  Laws target those who hurt people.  Even if the drug war can't be won, punishing users who get caught creates deterrence.  Ending prohibition is tantamount to full approval of nonstop drug-fueled debauchery.  Nobody who abstains from entertainment or performance enhancement involving illicit chemicals should be concerned about drug policy.  Prohibition only targets antisocial troublemakers who deserve what they get.

If you had to name the downsides of the drug war, what comes to mind?  Perhaps you'd list unending government spendingillicit profits enriching criminalsnarrowing constitutional protectionscivil asset forfeiture, or overcrowded jails.  Would you list being one accident or illness away from severe, chronic pain that could be treated but is not?

Oregon Ballot Measure 110, passed by voters in 2020 and enacted February 1, 2021, dropped Schedule I-IV drug violations from felonies to E misdemeanors, a $100 fine, and no jail.  Oregon's latest retreat from drug war orthodoxy follows the legalization of recreational marijuana and medical marijuana, which has not attracted federal retaliation.

Oregon has reduced punishment for non-medical possession to parking ticket levels.  But Oregon's increasing restrictions on prescription opioids have gone in the direction much of the country has moved in recent years, following the CDC's lead.

Although the CDC pain guidelines and the OMB website both acknowledge that not all pain is controlled with 90 MME (morphine milligram equivalents), the all-appointee Oregon Medical Board informed pain management doctors that all patients' dosage must conform to the 2016 CDC Guidelines level of 90 MME by the end of 2021.  

Anyone still prescribed above 90 MME in 2021 has meticulously documented records of painful medical conditions and conforming to restrictions uniquely demanded of pain patients.  Their conformity to not only laws, but lists of demands that have lengthened over the years is evidence of what kind of troublemakers these patients have never been. 

Patients prescribed opiates are required to sign a document called a pain contract.  Conditions can include being available for short-notice pill counts and urine tests (showing they haven't sold the meds or used illegal or legal substances, from meth to tobacco to alcohol), attending mental health counseling if ordered, no prescriptions from another practitioner (e.g., a dentist after a root canal), and not replacing lost or stolen medications.  While any violation is justification to immediately cease prescriptions, conforming doesn't protect against the abrupt cessation of prescriptions based on guidelines, not laws.  There is no recourse, no appeal.  

Anyone facing charges or punishment for a felony or misdemeanor has multiple opportunities to derail the government's objectives.  The accused may challenge the evidence, demand a jury trial, appeal the verdict, seek early release for good behavior, and request sentence commutation.  

Oregon's $100 drug fine can be waived by opting for a medical evaluation.  If asked by the accused to perform the evaluation, a physician, with at least eleven years of post-secondary education and 60 hours of continuing education every two years, must refer the individual to an addiction counselor.  The education required for a counselor license ranges from Level One — 130 hours drug/alcohol education, 1,000 hours' supervised experience, and a high school diploma to Level Three — three years supervised practice, 300 hours' education, and a master's degree (taking 9–36 months to complete). 

An M.D. cannot perform what Measure 110 describes as a medical exam.  That responsibility is given to someone with a fraction of the education.

Washington State has a similarly illogical mix of relaxed charges and punishments for drug possession outside medical care and increasing restrictions on pain doctors and patients.  After the state Supreme Court threw out Washington's possession laws in early 2021, legislation was quickly enacted making possession of Schedule I-IV drugs misdemeanors, with penalties expiring in two years.  Although state attorney general Bob Ferguson's preferred new limits on opiate-prescribing were not passed by the 2018 Legislature, Washington's State Medical Boards implemented those same restrictions in 2019.

Why are pain patients targeted for reduced medical treatment?  Officials justify restricting prescriptions by reciting the numbers of deaths attributed to opiates — not pain patients' deaths, but all deaths attributed to opiates.  But "opiate deaths" more often than not means more than opiates, since  69.2–85.7% of the death certificates the CDC counts in the opiate category mention one or more other drugs, excluding alcohol and nicotine.

One CDC publication of 2016 to 2020 data reported that deaths of illegal synthetic opioid users increased from 8 to 11 per 100,000 population, with other opiate deaths consistently lower.  From 2010 to 2020: heroin deaths were 4 per 100,000, methadone below 2 per 100,000, and prescribed opioids 3.8 per 100,000.  For comparison, a 2020 CDC report puts lung cancer deaths at 34.8 per 100,000.  Considering the thoroughly documented medical histories of opiate patients, one hopes their deaths would be fully investigated before being ascribed to medication.  But, according to the CDC, only 8.5% of U.S. dead are autopsied.  A report on opiate deaths published by the National Institutes of Health says the source of the data used by the CDC to compile and analyze mortality totals has an error rate of 20–30%.

The CDC's published data show that prescribed opioids have been only a tiny factor in U.S. deaths, while the AMA reports that opiate prescriptions have declined by over 40% since 2011.  Deaths reported have been rising only for illicit synthetic opioids, and not for prescribed opioids.

America's first federal drug restriction, the 1914 Harrison Act, included within its text the promise that restrictions would never apply to medical, dental, or veterinary professionals.  In Oregon and Washington, prohibition is officially upside-down, with punishment eased for possession outside medical settings, while doctors face loss of livelihood and life savings, and patients suffer pain that could be treated but is not.

Punishing one for the infractions of another is the very definition of injustice. 

Unconstitutional laws may be challenged in court.  Elected officials can be removed by recall, vote, or primary.  But a citizen facing non-legislated guidelines wielded by unelected bureaucrats is wrestling specters in the dark.

Image: Ben Harvey via Flickr, CC BY 2.0.

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