JJ Larkins, JD Anticipated May 2023, Law & Public Policy Scholar
On November 30, 2021, the first two government-approved overdose prevention sites (OPSs) in the United States opened in New York City (NYC). The sites opened amidst a tragic opioid overdose crisis: more than 2,000 people in NYC died from fatal overdoses in 2020. In 2021, drug overdose deaths in the United States exceeded 100,000 deaths in a single year for the first time. To combat the crisis, NYC opened OPSs to offer users a space to use safely under the supervision of trained staff who are able to respond to and reverse overdoses. The OPSs, in addition to safe consumption spaces, provide a number of other services to clients, including harm reduction counseling, HIV testing, and needle exchange.
Though NYC became the first city in the United States to open government-approved OPSs, Philadelphia was poised to do so in 2018. After a recommendation from the 2017 Mayor’s Task Force to Combat the Opioid Epidemic, Philadelphia health officials announced their plan to allow—but not fund—an OPS in the city. Community leaders subsequently rallied support from Philadelphia government officials to create Safehouse, a non-profit organization tasked with opening and operating the site. However, William McSwain, then-U.S. Attorney for the Eastern District of Pennsylvania, filed a civil suit against Safehouse in February 2019 asking the court to issue a declaration that OPSs violate federal law.
Though the district court found that OPSs did not violate federal law, the 3rd Circuit reversed on appeal: OPSs violate the federal “crack house” statute, which makes it illegal to “manage or control any place… for the purpose of… using a controlled substance.” The 3rd Circuit held that by “knowingly and intentionally” opening its site to visitors who come “for the purpose… of using” drugs, Safehouse violated the statute and was prohibited from opening an OPS. Safehouse appealed to the Supreme Court, but was denied certiorari. on October 13, 2021.
Since the 3rd Circuit ruled that OPSs in the United States violate the “crack house” statute, how is it possible that New York City can open government-approved OPSs without fear of legal challenges? And what does this mean for Philadelphia, a city that likely experienced its highest-ever overdose death toll—triple that of NYC per capita—in 2021?
There is no guarantee that the government-approved OPSs in New York City will avoid legal repercussions. However, several differences between the current situation in NYC and that of Safehouse in Philadelphia have allowed OPSs in NYC to open. Notably, the 3rd Circuit’s decision does not apply to the sites in NYC, which fall under the jurisdiction of the 2nd Circuit. While the holding could be persuasive if a similar suit were brought against the new OPSs in New York City, the Safehouse decision is not binding legal precedent and does not threaten their operation as it does in Philadelphia.
Furthermore, health officials and community leaders worked together to win community buy-in for the government-approved OPSs before trying to open them in NYC. The OPS in Washington Heights, for example, opened by expanding the existing syringe service program (SSP) in the neighborhood. The site already had the trust of the building’s management company, surrounding businesses, and nearby residents. In contrast, leaders in Philadelphia purposely decided not to open an OPS within Prevention Point, the only existing SSP in the city, for fear that the entire organization would be shut down by law enforcement. In the time between the district court’s and 3rd Circuit’s decisions, Safehouse could not convince landlords in Kensington to lease space for an OPS near Prevention Point, and when it redirected its efforts to open a stand-alone OPS in South Philadelphia, neighbors “came out in droves” in opposition, resulting in several City Council members withdrawing their support.
Given the change of presidential administrations since the 3rd Circuit ruling, however, OPSs in both NYC and Philadelphia no longer face opposition from the Trump administration and their appointed U.S. Attorneys, like McSwain. Nevertheless, the Biden administration has yet to release any statements about its stance on OPSs. The U.S. Solicitor General declined its right to comment on Safehouse’s petition to the Supreme Court, and the Biden administration’s new HHS Overdose Prevention Strategy stops short of endorsing safe consumption services as a harm reduction tool to combat the crisis. President Biden himself championed the “crack house” statute when he was a Senator, co-sponsoring the original bill and introducing the 2003 amendment which broadened its language to its present form.
With that said, the future of government-approved OPSs in Philadelphia currently lies with the Biden administration and its response to Safehouse’s continued litigation. Safehouse’s case is currently on remand in U.S. District Court in the Eastern District of Pennsylvania. Safehouse is asserting two arguments in front of the court: first, using precedent from Fulton v. City of Philadelphia, Safehouse founders have the right to open an OPS under the Religious Freedom Restoration Act because their sincerely held religious beliefs motivate them to save lives and second, that the “crack house” statute itself is an improper extension of Congress’s commerce powers. The second argument was struck down by the 3rd Circuit, but the district court never offered its opinion given its ruling was based on a facial interpretation of the statute.
The opening of New York City’s government-approved OPSs—in addition to Rhode Island becoming the first state to pass legislation approving an OPS pilot program in July, 2021 — could put added pressure on the Biden administration to take a stance in favor of OPSs in response to Safehouse’s continued litigation. The administration had until January 5 to file a brief stating its position on these two arguments in district court, yet Safehouse and the U.S. Department of Justice recently agreed to extend the deadline for the government’s response to March 7. Even if Safehouse does succeed in federal court, it is likely to face significant community opposition. Philadelphia City Council went so far as to pass a resolution in 2020 condemning the lack of transparency by the City and Safehouse when attempting to open an OPS.
As of January 23, 2022, staff at the OPSs in New York City have reversed 114 overdoses. Though Philadelphia must overcome substantial hurdles to open government-approved OPSs, namely gaining federal approval and community buy-in, it can look to New York City as an example of how to better work with communities to offer this life-saving tool to Philadelphians.