Seven months after a federal appellate court delivered a major setback to plans to open the nation’s first supervised injection site in Philadelphia, the nonprofit behind the endeavor is returning to court seeking new audiences and advancing new legal arguments.
Safehouse attorneys announced Thursday they had filed a petition with the U.S. Supreme Court asking it to weigh in on whether plans to open a site designed to prevent overdose deaths by allowing people to take drugs under medical supervision run afoul of federal law.
The move sets the stage for what could be the most definitive legal battle yet over the issue, but it’s one fraught with risk for supporters of such facilities.
An adverse ruling from the high court could set back their cause for years on a national level, even as some states have advanced legislative efforts to approve them. But the petition will force President Joe Biden’s administration to take a stand on whether it — like the Trump administration before it — will oppose supervised injection sites, something it has thus far appeared reluctant to do.
“We have a new administration, we have a new Department of Justice, and we want to know, ‘Is your position the same as your predecessors’?’” Ronda Goldfein, Safehouse’s vice president, said in an interview Thursday.
What prompted this move?
In January, the Philadelphia-based U.S. Court of Appeals for the Third Circuit ruled that despite Safehouse’s laudable goal of preventing overdose deaths, a supervised injection site would violate a law passed at the height of the 1980s crack-cocaine epidemic, colloquially known as the “crack house statute.” It bars anyone from operating from a facility “for the purpose of unlawfully … using controlled substances” and was the primary statute cited by former U.S. Attorney Bill McSwain and the Trump Justice Department in challenging Safehouse’s plans.
The decision, by a three-judge panel of the court, overturned an earlier District Court ruling that found the opposite and concluded that “the ultimate goal of Safehouse’s proposed operation is to reduce drug use, not facilitate it.”
The Third Circuit ruling capped off a series of blows to the nonprofit’s plans, including a failed 2019 effort to open in a South Philadelphia medical plaza amid an acrimonious battle with residents and members of City Council, who feared the site would concentrate drug use in their neighborhood.
What is Safehouse arguing at the Supreme Court?
In its petition asking the Supreme Court to take up the case, Safehouse attorneys argue that the Third Circuit’s interpretation of the “crack house statute” is too broad and should be reversed.
Writing for the appellate court panel earlier this year, Circuit Judge Stephanos Bibas concluded that no matter the intention of its operators, a supervised injection site inevitably is a facility opened “for the purpose” of using illegal drugs and, therefore, is barred by law.
But Safehouse’s lawyers maintain that their purpose is to save lives and any drug use that will occur onsite is only incidental.
The Third Circuit’s interpretation, they argue, would risk criminalizing homeless shelters or parents who allow a drug-addicted child to live in their home for fear of what could happen on the streets. In both cases, the operators may reasonably expect drugs will be used on their premises but in neither case is that drug use the goal.
What are Safehouse’s other options?
Even as they are pursuing a Supreme Court hearing, Safehouse’s backers announced Thursday that they would also return to the federal District Court in Philadelphia that first gave the green light to their proposal in 2019 to argue that government efforts to block them are a violation of their religious freedom. Their faith compels them to provide lifesaving medical care to vulnerable populations, they say.
It’s an argument Safehouse has floated since the start of their legal battles. But no court has yet issued a ruling on that claim.
U.S. District Judge Gerald A. McHugh sidestepped the issue in his landmark ruling in 2019. In its January ruling, the Third Circuit remanded the case back to his court to consider the argument.
Additionally, Safehouse’s backers said, they will seek to press a new religious claim before McHugh — one based on the Supreme Court’s ruling earlier this year in a separate dispute between Catholic charities and the City of Philadelphia.
In that case, the high court found that Philadelphia had overstepped by canceling its contracts with a Catholic organization that, citing its beliefs, refused to certify same-sex couples as potential foster parents.
But because a clause in city contracts allows exemptions to its standard nondiscrimination policies, the Supreme Court ruled that it couldn’t broadly reject the Catholic organizations without considering whether an exemption might be justifiable in their case.
Similarly, Safehouse supporters now argue, the Justice Department has allowed exemptions from certain federal drug laws for religious groups and should do the same for them. For instance, the DOJ has sanctioned the use of peyote for certain Native American groups that use it in religious practice.
Where does the debate over supervised injection sites stand nationally?
Safehouse’s legal battles in Philadelphia had been seen as a bellwether for advocates in other states seeking to open similar sites — and the Third Circuit’s ruling against it had a temporary chilling effect on their efforts.
But in the absence of clear direction from the Biden administration, advocates in other parts of the country renewed their efforts to push forward with plans to open similar facilities as overdose deaths climbed to a record 93,000 nationwide in 2020.
Earlier this year, Rhode Island Gov. Daniel McKee became the first in the nation to sign a bill legalizing supervised injection sites in his state.
Bills that would authorize them have also been floated in New Jersey, New Mexico, Illinois, and California.
Read Safehouse’s Supreme Court petition: