Several Justices Seem Dismayed at the Idea That Doctors Can Be Accidentally Guilty of Drug Trafficking
Under 21 USC 841, it is a felony for “any person” to “knowingly or intentionally” distribute or dispense a controlled substance “except as authorized by this subchapter.” Yesterday the Supreme Court considered how that language from the Controlled Substances Act (CSA) applies to physicians accused of prescribing opioid pain medication “outside the usual course of professional medical practice.” That issue is important for patients as well as doctors, because the threat of criminal prosecution for deviating from what the Drug Enforcement Administration (DEA) considers medically appropriate has a chilling effect on pain treatment.
The CSA authorizes physicians with DEA registrations to prescribe controlled substances. But according to a CSA regulation, a valid prescription “must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” Grammatically speaking, Justice Samuel Alito argued, the phrase “knowingly or intentionally” cannot be read as applying to deviations from that ambiguous standard. Justice Stephen Breyer disagreed.
Regardless of whether Alito or Breyer is right on that point, most of the justices seemed to agree that “the presumption of scienter”—some degree of intent or knowledge—applies when the government seeks to imprison doctors based on their prescribing practices. Even if the CSA does not explicitly require that a doctor “knowingly or intentionally” departed from accepted medical practice, Justice Neil Gorsuch noted, one could still argue that “the ‘except’ clause has to have some mens rea element to it, because it’s what distinguishes lawful from unlawful conduct.”
Even Deputy Solicitor General Eric Feigen, who was defending the federal government’s position on how the CSA should be applied to prescribers, conceded that point. Feigen argued that the proper test is whether a doctor made “an honest effort” to “practice some recognizable form of medicine.”
By contrast, the U.S. Court of Appeals for the 11th Circuit has held that a physician’s “good faith belief that he dispensed a controlled substance in the usual course of his professional practice is irrelevant” to the question of whether he violated the CSA. Based on that reading of the law, the 11th Circuit rejected the appeal of a Mobile, Alabama, pain specialist who was sentenced to 21 years in federal prison for writing opioid prescriptions that deviated from accepted practice. According to the 11th Circuit, it did not matter at all whether the defendant, Xiulu Ruan, sincerely believed that he was doing what a doctor is supposed to do.
That decision is one of two involving physicians convicted of drug trafficking that the Supreme Court is reviewing. In the other case, the U.S. Court of Appeals for the 10th Circuit likewise held that a doctor’s good faith has no bearing on the question of whether his prescriptions were written in “the usual course of professional practice,” which it said must be determined “objectively.” That case involves Casper, Wyoming, physician Shakeel Kahn, who was sentenced to 25 years in prison.
Justice Brett Kavanaugh was clearly troubled by the implications of those decisions. “The doctor may have
Article from Reason.com