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Planned Supervised Injection Facility Hits Roadblock in U.S. Circuit Court

January 20, 2021

The proposal by Philadelphia not-for-profit Safehouse to open the first supervised injection facility in the United States has hit a roadblock after a U.S. Circuit Court of Appeals ruled, 2-1, that doing so would violate federal law.

In the court’s majority opinion, the judges ruling against Safehouse wrote that although they recognized the organization’s motivations as admirable, “Congress has made it a crime to open a property to others to use drugs. 21 U.S.C. § 856. And that is what Safehouse will do.”

Safehouse, which offers a range of overdose prevention services, sought to open a site that would include rooms for the consumption of illegal opioids under the supervision of medical staff who are prepared to administer overdose reversal medication if necessary. According to the Drug Policy Alliance, there are currently about 120 supervised injection facilities operating in 10 other countries around the world. While there are no legal SIFs in the United States, data released in April 2019 suggests that a rogue site has been operating in the U.S. since 2014.

The circuit court’s ruling overturns an October 2019 decision in a U.S. district court in which the presiding judge said the Safehouse proposal does not violate the Controlled Substances Act because “[s]afe injection sites were not considered by Congress and could not have been, because their use as a possible harm reduction strategy among opioid users had not yet entered public discourse.”

U.S. attorney for the Eastern District of Pennsylvania William McSwain, meanwhile, said in a statement last week that the circuit court ruling “is a faithful reading of the statute’s plain language and is consistent with Congress’s intent to protect American neighborhoods from the scourge of concentrated drug use.”

In the court’s dissenting opinion, Judge Jane R. Roth concluded that if users were to be denied access to Safehouse’s proposed SIF, “they will still use drugs – and possibly die on the street” and added that the section of the Controlled Substances Act in question, 856(a), as written “is nearly incomprehensible.”

Ronda Goldfein, Safehouse board vice president and executive director of the AIDS Law Project of Pennsylvania, told NPR she was disappointed by the ruling—“the opinion doesn’t change the science”—and that Safehouse will review its legal options, hopeful that the Justice Department under the new administration of President Joe Biden will view its plan more favorably.

Safehouse’s efforts have the support of the National Harm Reduction Coalition. In an email to BHE on Wednesday, Michelle Wright, the coalition’s director of policy and advocacy called this month’s ruling “[s]adly...just another example of the legal system trailing behind science and informed opinion."

“The data is clear,” Wright said. “Safe consumption sites provide communities who use drugs access to safe syringes, knowledgeable providers and can drastically lower overdose rates (because people aren't using alone). As harm reductionists, we've been desperately urging legislators to consider implementing forward thinking solutions to combat the steadily rising overdose numbers." 

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