The nation’s top health official indicated on Wednesday that the Biden administration will not block the establishment safe injection sites where people could use illicit drugs in a medically supervised environment as a means of curtailing the overdose epidemic—but it will ultimately be up to the Justice Department to follow through, with a brief due in a key court case next week.
As the administration rolls out a new plan to address the health crisis—which will involve more modest harm reduction reforms like providing fentanyl testing and syringe access—Health and Human Services (HHS) Secretary Xavier Becerra says safe consumption facilities aren’t off the table.
The comments come at a pivotal time, as the federal government is actively in court facing a legal challenge over the overdose prevention centers, with a pivotal brief due soon. The U.S. Supreme Court recently declined to hear a case about the legality of these harm reduction centers, but advocates hoping to establish such a facility in Philadelphia are still pursuing the case at a lower federal court level, where the administration will have to make its position clear next week.
The Justice Department, rather than HHS, will be answering on behalf of the government in the case. But Becerra’s new comments signal that the administration is aware of—and sympathetic to—arguments in favor of providing people with harm reduction services.
“We are literally trying to give users a lifeline,” Becerra told NPR, adding that the federal agency is not going to intervene in state efforts to create safe injection facilities. “We’re not going to say ‘but you can’t do these other type of supervised consumption programs that you think work or that evidence shows work,’” he said.
“We are willing to go places where our opinions and our tendencies have not allowed us to go [before],” he said. “If you can’t prevent someone from becoming a user, then at least prevent them from harming themselves to the point of death.”
When The Washington Post separately asked Becerra whether the administration would clear the way for supervised consumption facilities, he said that while the ultimate legal decision is outside his “lane,” officials are “looking for every way to do that.”
“We probably will support the efforts of states that are using evidence-based practices and therapies,” he told the newspaper.
It’s not necessarily an endorsement of the progressive harm reduction strategy, which advocates argue could help mitigate overdose deaths while also providing people with substance misuse disorders access to treatment resources.
And an HHS spokesperson later sought to walk back Becerra’s remarks somewhat.
“HHS does not have a position on supervised consumption sites,” they said in a statement to NPR. “The issue is a matter of ongoing litigation. The secretary was simply stressing that HHS supports various forms of harm reduction for people who use drugs.”
Nonetheless, Becerra’s comments are a notable remark from a top administration official that may signal where the federal government ultimately comes down on the still-controversial policy.
What’s more, HHS as part of its rollout of the new overall overdose prevention program, put the origins of the drug war in no uncertain terms.
It said in a timeline on federal drug policy that the “federal government’s declaration of the War on Drugs instituted racially biased efforts to criminalize and control drug use” in the 1970s. And the “strategy disproportionately targeted Black people living in urban areas.”
While Becerra’s latest comments on harm reduction and his department’s acknowledgement of the racist origins of the drug war are encouraging to advocates, groups like the Drug Policy Alliance continue to push for broader reforms like decriminalization—policy changes that activists say could help destigmatize addiction and push people toward treatment resources.
President Joe Biden, for his part, has not personally weighed in on safe injection facilities. He’s said he doesn’t feel people should be incarcerated over low-level drug offenses, but allowing these centers would be a major development in the harm reduction movement.
Becerra, for his part, demonstrated a track record of supporting marijuana law reform while previously serving as California attorney general and as a member of Congress.
And for what it’s worth, a coalition of 80 current and former prosecutors and law enforcement officials—including one who is Biden’s pick for U.S. attorney of Massachusetts—previously filed a brief urging the Supreme Court to take up the Philadelphia-based safe injection case, which was brought about by the nonprofit organization Safehouse.
As California’s attorney general, Becerra joined counterparts from other states in signing onto a previous amicus brief when the Safehouse case was before a federal appeals court.
“The opioid epidemic has devastated communities throughout our nation. Safe injection sites aim to increase public health and safety by providing comprehensive services to victims of the opioid epidemic, while reducing the public nuisance of drug use in public spaces,” he said at the time. “Safe injection sites like Safehouse are an innovative tool to combat the opioid epidemic and drug dependency while reducing overdose death and transmission of diseases. California has always been a trailblazer, and we’re committed to doing what it takes to keep our communities healthy and safe.”
Again, however, HHS won’t be speaking for the administration in the Safehouse case in federal court. That will be left to the Justice Department, whose stance on the issue is less clear at this point. The department declined to take the option to file a brief at the Supreme Court level, though the option of staying quiet is not available now that the case is back in a lower court.
Safehouse was set to launch the safe consumption site in Philadelphia before being blocked by a legal challenge from the Trump administration. It filed a petition with the nation’s highest court in August to hear the case.
But while the Supreme Court declined to take action—and the Biden administration passed up its voluntary opportunity to weigh in at this stage, which may well have influenced the justices’ decision—activists say the battle will continue at a lower federal court level, where they activists intend to submit multiple arguments related to religious freedom and interstate commerce protections.
The Biden administration will be compelled to file a response in that court by November 5.
Depending on the outcome of the case, advocates and lawmakers across the country may be emboldened to pursue the harm reduction policy.
The governor of Rhode Island signed a bill in July to establish a safe consumption site pilot program where people could test and use currently illicit drugs. It became the first state in the country to legalize the harm reduction centers. It’s not clear whether the Department of Justice will seek to intervene to prevent the opening of such facilities in that state.
Massachusetts lawmakers advanced similar legislation last year, but it was not ultimately enacted.
A similar harm reduction bill in California, sponsored by Sen. Scott Wiener (D), was approved in the state Senate in April, but further action has been delayed until 2022.