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Harm Reduction Advocates Urge Federal Judge To Deny DOJ Challenge To Overdose Prevention Site



A Philadelphia nonprofit is urging a federal court to deny the Justice Department’s recent motion to dismiss a lawsuit over the establishment of a safe drug consumption site.

DOJ first blocked Safehouse from opening the overdose prevention center under the Trump administration. Supporters hoped the department would cede the issue under President Joe Biden, who has promoted harm reduction policies as an alternative to criminalization, but so far they’ve been disappointed.

The Justice Department made its position clear last month, stating in a court filing that safe consumption sites, where people could use illegal drugs in a medically supervised environment, violate federal law. It asked the U.S. District Court for the Eastern District of Pennsylvania to dismiss the lawsuit from Safehouse, which claims religious and First Amendment exemptions to the federal statute.

In response, Safehouse has filed a 57-page brief contesting DOJ’s argument that the religious exemption doesn’t apply.

Replying to the department’s assertion that Safehouse isn’t legally entitled to the exemption because it is not principally a religious organization, attorneys for the nonprofit said that its board members are guided by their faith to provide harm reduction services to people in need.

“Tens of thousands of others continue to suffer in the grips of opioid addiction and substance use disorder,” says Safehouse’s brief, filed Tuesday. “Safehouse’s board members grieve for every life lost to overdose. They believe, based on their deeply held religious convictions, that they have a duty to do everything possible to keep those individuals alive, even for one more day.”

“Instead of allowing people at risk to remain under Safehouse’s care and supervision at the critical moment of consumption, DOJ demands that Safehouse and its board members either cast these vulnerable individuals outside or risk criminal prosecution for allowing them to remain sheltered and within immediate reach of critical medical treatment,” the filing says.

“Safehouse’s calling to care for those in need—when those people are most vulnerable—has long been recognized as an integral and central part of religious practice. Safehouse’s beliefs about provision of care to the vulnerable are neither novel nor unusual. Judeo-Christian religious beliefs have led the faithful to provide aid to the sick and poor for centuries, often by providing shelter to the accused or unfortunate even in the face of governments hostile to religious offers of sanctuary.”

The organization argued that DOJ is violating the nonprofit board members’ First Amendment right to freedom of religion by preventing the group from opening an overdose prevention site. And it pointed out that for-profit businesses, such as Hobby Lobby, have been able to assert religious freedom defenses in the U.S. Supreme Court despite the fact that they are not principally religious entities.

To that end, Safehouse is asking the court to deny the motion to dismiss. If the court does approve the motion, however, the nonprofit is asking that the judge “afford Safehouse leave to amend” so the group can continue to fight to open the facility.

In the lead-up to DOJ’s initial response, several local lawmakers, including Democrats who champion marijuana legalization, asked the federal court to block Safehouse from opening and request for permission to file a brief in the case. A coalition of 20 Pennsylvania community groups also requested that the court allow it to intervene in the lawsuit.

But in recognition of the fact that the government is defending the existing statute and opposing overdose prevention sites, the court denied the coalition’s request last month.

The Justice Department previously declined to file a brief to offer its position on the harm reduction issue, and it asked the court for more time to respond in the “complex” case. Last year, the department said that it was in the process of evaluating possible “guardrails” for safe consumption sites.

In January, Safehouse and the department had agreed to transfer the case to mediation before a magistrate judge to settle the issue. The talks had been described as “productive,” leaving some advocates hopeful that DOJ might drop the case altogether.

The Supreme Court rejected a request to hear a case on the legality of establishing the Safehouse facilities in October 2021.

In a recent report, congressional researchers highlighted the “uncertainty” of the federal government’s position on safe drug consumption sites, while pointing out that lawmakers could temporarily resolve the issue by advancing an amendment modeled after the one that has allowed medical marijuana laws to be implemented without Justice Department interference.

While the Philadelphia facility is being held up amid litigation, New York City opened the first locally sanctioned harm reduction centers in the U.S. late last year, and officials have already reported positive results in saving lives.

But a federal prosecutor who has jurisdiction over Manhattan recently emphasized in a statement to The New York Times that the sites are illegal and that he is “prepared to exercise all options—including enforcement—if this situation does not change in short order.”

Meanwhile, National Institute on Drug Abuse (NIDA) Director Nora Volkow has tacitly endorsed the idea of authorizing safe consumption sites, arguing that evidence has effectively demonstrated that the facilities can prevent overdose deaths.

Volkow declined to say specifically what she believes should happen with the ongoing lawsuit, but she said safe consumption sites that have been the subject of research “have shown that it has saved a significant [percentage of] patients from overdosing.”

Rahul Gupta, the White House drug czar, has said the Biden administration is reviewing broader drug policy harm reduction proposals, including the authorization of supervised consumption sites, and he went so far as to suggest possible decriminalization.

A study published by the American Medical Association (AMA) last year found that the recently opened New York City facilities have decreased the risk of overdose, steered people away from using drugs in public and provided other ancillary health services to people who use illicit substances.

The National Institutes of Health (NIH) put out a pair of requests for applications in December 2021 to investigate how safe consumption sites and other harm reduction policies could help address the drug crisis.

Gupta, the director of the White House Office of National Drug Control Policy (ONDCP), has said it’s critical to explore “any and every option” to reduce overdose deaths, which could include allowing safe consumption sites for illegal substances if the evidence supports their efficacy.

Read Safehouse’s response brief in the overdose prevention site case below:

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Image courtesy of Dima Solomin.

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Kyle Jaeger is Marijuana Moment's Sacramento-based managing editor. His work has also appeared in High Times, VICE and attn.


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