With oral arguments set for Monday in a federal court case over a proposed Philadelphia safe drug consumption site, counsel for the would-be facility sent a letter to the judge in the case on Thursday calling out the Department of Justice (DOJ) for taking apparently contradictory legal positions.
In the Philadelphia safe consumption site case itself, the letter says, DOJ has argued that the harm reduction aims of Safehouse, the nonprofit attempting to open facility where people can use illicit substances in a medically supervised environment, are “socio-political” rather than religious.
In a separate case involving an Episcopal church in Oregon, however, DOJ recently filed a statement of interest arguing that “distribution of free meals to persons in need is ‘religious exercise’” that would be infringed by a local zoning ordinance.
Writing to Judge Gerald McHugh of the Eastern District of Pennsylvania, DLA Piper attorney Ilana Eisenstein said the government can’t have it both ways.
DOJ’s arguments in the Oregon case, Eisenstein wrote, “demonstrate that Safehouse has adequately pled a substantial burden on its religious exercise.”
In other words, the letter asserts that if the government views handing out free meals to people in need as protected on religious grounds, it can’t simultaneously deny that harm reduction services could deserve similar protections.
“DOJ’s positions in that case are irreconcilable with its arguments here,” the letter says, “and confirm that this Court should deny the DOJ’s pending motion to dismiss.”
In its lawsuit attempting to allow the facility to open, Safehouse has argued that its harm reduction activities are protected under the Religious Freedom Restoration Act (RFRA) and other federal laws protecting worship because the group’s mission aligns with sincerely held religious beliefs.
But the federal government has asked the court to throw out Safehouse’s lawsuit, arguing that the matter isn’t a religious one at all. In September, DOJ lawyers argued that “Safehouse is not a religious organization and thus cannot plausibly assert a RFRA or Free Exercise claim on behalf of the corporation itself.”
DOJ also maintains that the nonprofit’s “professed ‘belief’ in facilitating illegal drug use is not a ‘religious’ one, but rather a socio-political belief informed by harm reduction principles.”
Safehouse is not a religious organization itself, but in August, a group of 35 Christian and Jewish faith leaders from 19 states submitted an amicus brief in which they supported the nonprofit’s establishment of overdose prevention site. They said that while the organization may be secular, board members are nevertheless motivated by a faith-based understanding of their obligation to prevent unnecessary drug overdose deaths.
Ahead of DOJ’s initial response to the suit, several local lawmakers, including Democrats championing marijuana legalization, asked the federal court to block Safehouse from opening and requested permission to file a brief in the case. A coalition of 20 Pennsylvania community groups also requested that the court allow it to intervene, but in recognition of the fact that the government is defending the existing statute and opposing overdose prevention sites, the court denied that group’s request.
The Justice Department previously declined to file a brief to offer its position on the harm reduction issue, and it asked for more time to respond in the “complex” case. Last year, the department said it was in the process of evaluating possible “guardrails” for safe consumption sites.
In January, Safehouse and the department 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 dispute altogether.
The Justice Department 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 Supreme Court rejected a request to hear a case on the legality of the Safehouse facilities in October 2021.
While the Philadelphia facility was being held up in the litigation, New York City opened the first locally sanctioned harm reduction centers in the U.S. in November 2021, and officials reported positive results saving lives.
A study published by the American Medical Association (AMA) last year found that the recently opened New York City facilities had 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.
Separate research published last month by the American Medical Association found that New York City’s first drug overdose prevention centers (OPCs) have not led to increased crime despite a significant decrease in arrests.
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.”
Congressional researchers have highlighted the “uncertainty” of the federal government’s position on such facilities, pointing out last November 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.
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.
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.
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