“This article operates at the intersection of privacy law, Fourth Amendment doctrine, and prescription drug surveillance instigated by the U.S. drug overdose crisis. Reputable reporting sources frequently frame that ongoing crisis as a prescription-drug-overdose ‘epidemic.’ Current epidemiological data, however, indicate that most American overdose deaths are now a result of illicit and polysubstance drug use and not prescription opioid misuse.

The prescription opioid-centric frame has nonetheless sparked the rapid rise of surveillance of prescribers and patients in the form of state Prescription Drug Monitoring Program (PDMP) databases. State PDMPs, which maintain and analyze significant data concerning every dispensed controlled substance, surreptitiously collect a stunning amount of sensitive health information.”–Jennifer Oliva, abstract to “Prescription-Drug Policing:

The Right To Health Information Privacy Pre- and Post-Carpenter,” Duke Law Journal, Vol. 69, No. 4 (2020), 775-853. The Drug Enforcement Agency never met a drug it liked. So when opioid-related addictions, overdoses, and deaths started rising 13 years ago, the DEA perked up its ears and began doing what it does most: arresting dealers and interdicting illicit narcotics shipments.

The hitch this time: the main villains were pharmaceutical companies based in the U.S. and doctors allegedly overprescribing opioids. Polysubstance use is not new, but combining opioids with other opioids or benzodiazepines can be deadly. As this behavior became more common, the death toll started to rise. According to the National Institute on Drug Abuse (NIDA), “opioid-involved overdose deaths rose from 21,089 in 2010 to 47,600 in 2017 and remained steady through 2019. This was followed by a significant increase in 2020, with 68,630 reported deaths, and again in 2021, with 80,411 reported overdose deaths. Drug overdose deaths involving prescription opioids rose from 3,442 in 1999 to 17,029 in 2017. From 2017 to 2019, the number of deaths declined to 14,139. This was followed by a slight increase in 2020, with 16,416 reported deaths. In 2021, the number of reported deaths involving prescription opioids totaled 16,706. Drug overdose deaths involving heroin rose from 1,960 in 1999 to 15,482 in 2017 before trending down to 13,165 deaths in 2020 and 9,173 deaths in 2021.

Drug overdose deaths involving benzodiazepines steadily increased from 1,135 in 1999 to 11,537 in 2017, declining to 9,711 in 2019. Between 2019 and 2021, deaths rose again to 12,499.” https://nida.nih.gov/research-topics/trends-statistics/overdose-death-rates The data show some declines over the past two years but significant increases in other areas, namely opioids with or without benzos. So, with these statistics in hand, federal, state, and local pressure was brought to bear on pharmaceutical companies already smarting from multi-million dollar lawsuits brought by plaintiffs who’d been lied to about the efficacy and addiction potentials of opioids and benzos.

Consequently, Big Pharma started to shut down the pipeline to legitimate physicians and patients, citing shortages due to COVID-related supply chain issues. As we have seen, increased reliance on the NarxCare program led to primary care physicians “turfing” patients prescribed opioids and benzos for chronic pain and anxiety, with pain care specialists being targeted by law enforcement for prescriptions, legitimate or not.

Ms. Oliva makes a vital point: deaths from polysubstance misuse must be viewed separately from deaths from prescription opioid misuse. NIDA makes this clear in its data. Unfortunately, journalists and law enforcement officers–then and now–have failed to make this key distinction. The result has turned a public/mental health problem into a law enforcement problem. Eighty-five years of marijuana prohibition and the 13-year “Great Experiment” with alcohol prohibition have shown the folly of this approach. But we continue to prosecute and persecute drug users.

The “drug problem” is a nail, so the only tool available is a hammer. And epidemics and pandemics sell papers. Last month, in an attempt to put a Band-Aid on a suppurating wound, Congress approved funding for the NOPAIN Act, designed to fund and encourage the use of non-opioid pain treatments like nerve blocks and long-acting numbing medications like lidocaine. Unfortunately, the program doesn’t go into effect until early 2025, meaning at least another 18 months of NarxCare targeting all physicians who prescribe opioids and benzos and the patients who legitimately need them. Also, the NOPAIN program is meant only to divert opioid users to non-opioid treatments, which not all patients will be able to access or find helpful.

While there is promising research regarding an alternate neural pathway that could result in painkillers with little or no addiction potential, practical applications are still years away. Once again, we’re torn between legalization and criminalization, between treating drug users as human beings or as criminals.

The law, then as now, seems to still have trouble recognizing that gray areas exist. This leads to the $512,000 Question: Why are so many people addicted to alcohol, opioids, and benzodiazepines? or what forces in their lives are driving them to seek such drastic chemical solace? These questions have bedeviled Americans since the first temperance societies were established in the mid-19th century.

These will be the focus of the last part of this series in the next issue out on November 13.