11.07.19

There is No Negligence in the Air: The Opioid Crisis as a Consequence of State Failures

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Last week, the O’Neill Institute held an event titled: “Applying the Evidence: Legal and Policy Approaches to Address Opioid Use Disorder in the Criminal Justice and Child Welfare Settings.” At this event, policymakers and stakeholders discussed strategies to implement a preventative, restorative approach to the opioid crisis. 

During the event, moderator Michael Botticelli noted that “the causes of this epidemic and, quite honestly, many health issues are not just about the specific drivers of the opioid epidemic, but are rooted in stigma, and discrimination, poverty, racism, trauma, lack of vocational and educational opportunities, and social isolation, just to name a few.”

Tracie Gardner (Legal Action Center), Mayor Stephen Williams (Huntington, WV), and moderator Dr. Michael Botticelli (Boston Medical Center) discuss systemic barriers to solving the opioid crisis.

Dr. Botticelli’s statement relates to the phenomenon of “diseases of despair,” a moniker for the recent increase in illness and mortality among Americans due to drug and alcohol poisoning, violence, and suicide. A report released in June 2019 by the public health groups Trust for America’s Health and Well Being Trust found that deaths due to alcohol, drugs, and suicide have increased “precipitously” among 18 to 34 year olds since the late 1990s. Of these three diseases, deaths by drug overdose have increased the most significantly. Notably, between 1999 and 2017, opioid overdose death rates among this age group increased by more than 500 percent. Other studies have found similar increases in diseases of despair among white Americans aged 45 to 54. 

A study by Princeton University attributed the increase in deaths due to diseases of despair not to increased access to drugs, alcohol, or firearms (the most common method of suicide), but to “a long-standing process of cumulative disadvantage for those with less than a college degree.” Studies which focus more directly on the effects of diseases of despair on the white population note that “the turnaround among whites is shocking because of the advantages they enjoy.” The authors of the Princeton study further assert that “cumulative distress, and the failure of life to turn out as expected” has a much greater effect on white Americans than any other population. If marginalized populations are the “canaries in the health care coal mine,” the opioid crisis’s effect on the white population demonstrates that systemic issues are reaching every corner of this country.

During the same panel, Tracie Gardner of the Legal Action Center referred to the opioid crisis as a “highlight of what we’ve neglected,” or a result of the failure of a system or a problem-solving strategy. As New York Court of Appeals Chief Justice Cardozo famously quoted, “proof of negligence in the air, so to speak, will not do.” That is to say: this government’s failure to support its citizens is not without consequence. When we exclusively blame pharmaceutical companies for the opioid crisis, we are only looking at part of the picture. The current administration, which has provided states with billions of dollars in support of combating the opioid crisis, is the same administration which supports enforcing stricter requirements for those attempting to engage with welfare programs and is trying to eliminate public health insurance. The intent to solve this crisis is apparent, but the unwillingness to take accountability for institutional neglect will only serve as a barrier. 

In response to the opioid crisis, and likely due to its significant effect on white Americans in particular, policymakers are beginning to more seriously shift focus to a restorative, preventative approach to the opioid crisis. Huge sums of money are being directed to aid individuals with opioid use disorder (OUD) through government grants and settlement deals. But solving the opioid crisis needs to include preventative efforts alongside damage control, and preventative efforts need to go beyond holding drug companies accountable and reducing prescription rates. 

The rise in opioid-related deaths is merely a factor in an ongoing crisis which takes many forms, and it is just as much an issue of drug use as it is one of poverty, inequality, and trauma. Without a contextual understanding of this crisis, we are doomed to repeat ourselves and free the guiltiest agents of their liability.

States and communities are currently in the midst of multidistrict litigation against the drug companies which have profited off of developing, distributing, and dispensing opioids. Using the money from these settlements to providing medications for OUD, such as methadone, to individuals seeking recovery is a good start. But, in order to take real, preventative steps to avoid further harm, and further deaths of despair, the government should also take significant steps toward a systemic, economic overhaul. Both the federal government and states need to enact policies which ensure that their citizens are well-paid, healthy, and secure.

This country’s many crises do not exist in separate spheres. If we look at each crisis as its own discrete issue, we are unable to see the impact of structural failures. This country was founded on the mentality of “pick yourself up by your bootstraps,” but when systemic barriers begin harming the health of Americans, even as children, it becomes apparent that negligence and culpability extend far beyond drug companies.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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