Challenging The

CONTROLLED SUBSTANCE ACT

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April 24, 2006 -
We, at the Pain Relief Network have a long-overdue action ready to be taken against the United States Department of Justice. We very much want to enjoin them from prosecuting physicians under the Controlled Substances Act (CSA).

BACKGROUND

The prevailing wisdom is that the only way to challenge the CSA is to take little bites at it. In the case of pain medicine, we have the opportunity to call the entire statutory framework into question. Raich, for instance, is arguing to make medical marijuana an exception to the CSA, in certain rare situations where the plaintiffs' extreme illness outweigh whatever interest the Federal government can claim in protecting the public from marijuana. While we wish the plaintiffs the best of luck with their claim, when compared with ours, it is peripheral.

WHAT'S DIFFERENT ABOUT OUR DRUGS

In our case, we have the unique opportunity to protect the lawful practice of medicine from a USDOJ that does not recognize any limits on its authority.

The opportunity, also, is to open a real discussion that needs to begin in this country about how this law has interfered with the ethical practice of medicine and of course, how it has destroyed the legal protections of criminal defendants as well.

HERE'S HOW

Because the DOJ is going after doctors merely for doing medicine in a way that the DOJ attorneys disagree with (an MO they admit to in writing, by the way) the government's experts are making up the law on a case-by-case basis. This is arbitrary and by definition in violation of the rights of physicians to a) practice in a climate of lawfulness and 2) know ahead of time what sort of conduct is criminal so that they can make sure they don't do it.

HOW OUR ISSUE COULD WAKE AMERICA UP

Now, since a crime is whatever the government witness says it is, the only way a doctor can protect himself from criminal liability is to not prescribe. Since this is going on across the US, even to the extent that patients with morphine pumps in their backs are being dropped by doctors, the USDOJ has created a climate of scarcity (by terror) which, on its face, violates the patient's right to due process because people with untreated pain are losing jobs, businesses, their lives, custody of their children, their marriages and the list goes on. Moreover they and their families are living in constant fear.

The scarcity has also created a nightmarish situation where people in pain are coerced into signing away their medical privacy to the DEA and agreeing to visit only one pharmacy, one doctor, agreeing also not to visit emergency rooms for pain relief, even agreeing never to ask for an increase in their dose of medication ever again, etc. The terrified doctors have become agents of the law, and patients are having The War On Drugs' zero tolerance imposed on them and them alone. No other class of people, except prisoners, are treated in this manner, and by their doctors!

Medical board guidelines have been promulgated which require doctors to try every other possible treatment modality before they try opioids, when opioids are the only truly safe and effective medicines out there. So here we have the enactment of special cop-medicine that you get from your doctors if you are unlucky enough to be in ongoing pain- and this special approach to your care is required by the criminal law-anyone for Jewish medicine, or black people medicine? How about gay medicine?

In addition, people in pain can be thrown off their meds at any time because an angry spouse or acquaintance need only to call the doctor and allege criminality, and the doctor will drop the patient in order to protect himself. What if you are in pain and you do develop a problem with addiction? Tell your doctor? Better not. Because now, he has evidence of your ?illegitimacy? as a patient.

So the CSA has created a suspect class based on a disability (50 to 70 million people are said to be in disabling pain-a third of them in out-of-control pain) and because of the utterly arbitrary manner in which it is enforced, the law has in fact required doctors to treat their patients as presumptive criminals. The testimony from the witchtrials reveals that that the doctors are being convicted of being insufficiently suspicious of their patients-a requirement found nowhere in the statute or the rules that purport to enforce the CSA. This imperative contravenes the Geneva Conventions which insists that doctors not be compelled to carry out tasks that are not compatible with their humanitarian mission...nor be compelled to refrain from acts required by medical ethics."*

THE KICKER

As it turns out, the "legality" of Schedule 2s is more properly regarded as pseudo-legality. These drugs are only legal when a law enforcement officer doesn't call their legality into question. No wonder Richard Nixon was so gun-ho on a drug war as a way to gain and hold political advantage. Schedule 2's, when viewed from a political pov, are really little "gottcha" bombs. If a DEA agent alleges that a doctor has been prescribing in a 'criminal manner' HIPPA is irrelevant and the agents can paw through the records to their heart's content. Any time a law enforcement officer finds you with Scheduled drugs it is incumbent upon you to show that you possess them lawfully. In other words, your presumption of innocence has been removed and replaced by a legal fiction-that you are in lawful possession as long as you came by the medicines in a transaction authorized by the United States Attorney General- your ?lawful possession? of your own medicine is actually at the sufferance of the Department of Justice.

Thankfully, there is a way to get to this.

The states regulate medicine and the states Attorneys Generals, in two letters (1st NAAG Letter pdf), have called the DEA out for its outrageous behavior and have stated that they believe that the DEA is interfering with the practice of medicine.

The ACLU of Mass. has taken a strong interest and would join us in taking this position. Harvey Silverglate in Boston is our ally over there.

We are working with a highly qualified attorney in Virginia, John P. Flannery, a former Federal prosecutor and Special Counsel to both houses of the Judiciary Committees. He has been working on several of our appeals and has become apprised of the government's vulnerabilities.

We are also working with several top medical experts who can bring to the briefing and to the court, the medical evidence that was the basis upon which medicine had originally gone forward and had begun treating pain as though it were an illness like any other.

Opioids, it turns out, are not nearly as addictive as we had previously believed. In fact, amongst the population of those in pain who take it everyday, the incidence of addiction is negligible. Moreover, the science can dictate that a physician give patients amounts of opioids for severe pain, that the government refers to as "obscene." Imagine what that means to you if you are such a patient.

These scientific truths flew in the face of the government's propaganda machine, which they use to justify the entire War On Drugs. We in the pain community have borne the brunt of a huge, law enforcement apparatus desperately fighting to justify its existence in the face of evidence that proves that the "hardest" of all drugs, the feared and dreaded opium, turns out not to be so dangerous at all.

For turf reasons, PRN has been undermined by the other drug reform organizations. At this point, we would like to represent this issue in court and seek financial and tactical support on this limited basis and not as part of the drug policy, i.e., harm reduction or marijuana movement. Our movement has its own history and its own political allies.

We are fighting for ethical medicine, and for the civil rights of people in pain, something that the CSA has effectively outlawed. But this is also a fight for judicial oversight of the executive branch, when the Congress has shown that it will not protect the vulnerable minority of people in pain lest it look "soft" on drugs.

There is a great more to say, but I'll leave you with this:

People in pain are the canaries in the coalmine. They are the Americans who are the "collateral damage" when we, as a nation, gave into the temptation to relax the Constitutional protections afforded defendants because the bad guys-i.e. drug dealers-were so bad that the good guys had to be given a procedural advantage. Now, the new bad guys are the few doctors in the communities who put the patient's best interests ahead of their own, and who treated the pain of these most desperately outcast people. This is what happens when we give into the urge to relax our protections of defendants. This issue makes the resulting tyranny terribly, terribly real.

We are looking for thoughtful participation and financial support. Please feel free to call or email with any questions. We are a 501 c3.

Our Tax ID # is 54-2105672.

PO Box 231054

New York, NY 10023



(917) 432-4294

My name is pronounced She-vaughn. Short e.

Here's an important article on the issue by Maia Szalavitz.

Dr. Feelscared
http://www.reason.com/0408/fe.ms.dr.shtml

Thank you.

Siobhan Reynolds

Family Member of a Chronic Pain Patient

President

Pain Relief Network

'Standing up for patients in pain and the doctors who treat them'


(212) 873-5848

(212) 873-6755 fax

rathronan@aol.com