Legalizing Opioids Would Dramatically Reduce Overdoses

In his Liberty Forum essay, Robert VerBruggen argues that the dramatic increase in opioid deaths in the United States over the past two decades has resulted mainly from over-selling by pharmaceutical companies and over-prescribing by physicians and other healthcare providers. As such, he concludes that policy should further restrict access to prescription opioids, while expanding access to Medication Assisted Therapies (MATs) such as methadone and buprenorphine.

I argue here that opioid overdoses occur mainly when policies are in place that restrict or outlaw opioids. The right policy is therefore legalization or at least substantially greater legal access; expanding MATs is only a small step in that direction. Legalization might increase opioid use, and legalization will not eliminate all adverse consequences from opioids. But legalization would dramatically reduce overdoses, facilitate safe use of opioids by pain patients and others, and reduce or eliminate other prohibition-induced ills such as violence, corruption, racial profiling, and civil liberties infringements.

This conclusion follows from historical and recent evidence on past restrictions and prohibitions on opioids, alcohol, and other drugs. These substances have been dangerous when illegal or highly restricted and far less dangerous—indeed, often beneficial—when legal or mildly restricted.

Prohibition makes opioids more dangerous because it forces the market underground, which inhibits normal quality control. In legal markets consumers know the potency of the drugs they purchase; they do not buy beer and receive grain alcohol or aspirin and get morphine. Similarly, if opioids were legal, consumers would not buy heroin and receive fentanyl or heroin laced with fentanyl. Legal markets provide good quality control, via several mechanisms, and therefore rarely produce accidental overdoses.

Under prohibition, however, buyers cannot sue or complain to consumer-protection agencies when a dealer sells them adulterated or mislabeled goods. Likewise, sellers cannot advertise their products against others whose drugs may be more dangerous. Canadian physician Evan Wood indicates that “simply cutting [patients] off of opioids can lead to all sorts of problems with people turning to the street and transitioning to intravenous use and, of course, with fentanyl out there in the drug supply it can be very, very, very dangerous.” Wood highlights that many users substitute harder street drugs when access to less potent opioids is cut off, yielding an increase in overdose deaths. As one recovering New Jersey addict told a reporter for nj.com, “They’re selling bags of fentanyl and calling it heroin. People are dropping like flies. People are used to using a bag or two of heroin and they’re getting straight fentanyl and it’s killing them.”

Note that even before the major crackdown on access to prescription opioids that occurred around 2010 in the United States, the increased prescribing occurred under a regime in which  access to prescription opioids was strictly limited. Thus many who began use for medical conditions were not allowed to continue use indefinitely, thereby creating a group of patients forced into the gray or black market, and into the uncertainties just described.

Prohibition also makes opioids more dangerous by encouraging drug mixing. In 2013, 77 percent of deaths involving prescription opioids involved mixing with either alcohol or another drug. If opioids are easily accessible, people tend to use the substance they desire; when access is limited, however, some consumers obtain an insufficient quantity and therefore improvise with alcohol, benzodiazepines, and other drugs. Taking these drugs together increases the risk of overdose, especially when dealing with depressants like opioids, which, according to a government document from the state of South Australia, “can cause a person’s breathing and heart rate to decrease dangerously.”

Prohibition further increases overdoses by disrupting tolerance, which makes use less dangerous as the body develops resistance to opioids’ respiratory-depressing effects. Medically, opioids neither cause organ damage nor have a dosage ceiling, in which “additional dose increases produce no change in efficacy and only cause more side effects or toxicities.”[1] If higher dosages can treat pain without damaging organs, limitations make little sense.

Worse, under prohibition users who have developed tolerance get cut off, whether by legal or  medical restrictions or by being forced into non-MAT treatment. Tolerance then declines, according to medical experts in drug rehabilitation, so users who resume use are more prone to suffer an overdose.

One study proposes that environmental factors also influence tolerance, and that “a failure of tolerance should occur if the drug is administered in an environment that has not, in the past, been associated with that drug.”[2] Therefore, prohibition may increase the chance of overdose by driving users out of their routine into unfamiliar settings in which their tolerance against the respiratory effect of opioids is diminished.

Prior to 1914 in the United States, opioids (and all other drugs) were legal, easily accessible, and commonly prescribed. Yet no opioid “crisis” or “epidemic” gripped the nation.[3] Similarly, alcohol consumption declined modestly during Prohibition in the 1920s and early 1930s[4], but deaths due to alcohol increased as adulterated, low-quality, and even poisonous versions of alcohol proliferated.[5] Thus in both cases, restrictions made use more dangerous, even if it reduced use.

More recently, Portugal decriminalized all drugs—including opioids—in 2001 and then witnessed a dramatic decline in drug-related deaths. In fact, “In 2012, they had just 16 drug-related deaths in a country of 10.5 million,” according to Justin McElroy of CBC News. Decriminalization also allowed individuals to purchase and use in safer settings and gain better access to harm-reduction resources such as needle exchanges, thus decreasing HIV and other transferable diseases.

Experience in other countries tells the same story. Between 2000 and 2005, the number of patients receiving buprenorphine, a partial opioid agonist, in France increased from 65,000 to 90,000. In this period, “the rapid spread of buprenorphine treatment in France has been associated with individual, social, and economic benefits” including “a dramatic reduction in deaths resulting from drug overdose [and] a reduction in HIV infection prevalence among [injection drug users].”[6] While the subdued euphoric effects of buprenorphine distinguish it from other opioids, this case still demonstrates how the de-stigmatization can facilitate access to medically efficacious treatments.

Compare this to the United States. Most opioids are listed by the DEA as prohibited Schedule I or Schedule II drugs. Buprenorphine and other medically efficacious alternatives are highly regulated and restricted. Yet overdoses continue to increase year after year even in the face of  heavy-handed interdiction. With fewer restrictions on methadone, buprenorphine, and other medically efficacious opioid addiction treatments, the detox process would be more accessible. VerBruggen acknowledges this point, suggesting that, “addiction medications have proven to be highly effective, if far from 100 percent so.” It is perplexing that he recognizes the benefits of allowing legal access to methadone and other MATs, but ignores this logic for other opioids. Methadone, a “very potent opiate medication,” is accepted as “safer” because it can be legally administered in a controlled setting with the contents known to the user. The same could be true for any opioid under legalization.

Prohibition proponents nevertheless argue that limiting opioid prescribing will decrease overdose deaths. VerBruggen commands that doctors “must prescribe” opioids “less often without denying relief to people who really do suffer from extreme pain.” This idealist policy prescription is a pipe dream. Take, for instance, the 2010 federal crackdown on pill mills (networks of doctors and pain clinics that prescribe high quantities of opioids and other painkillers). To limit prescribing, state legislatures passed laws limiting a doctor’s ability to dispense opioids. Concurrently, the federal Drug Enforcement Administration enhanced its efforts to raid pill mills.

Though perhaps well-meaning, these actions harm those who desire opioids for pain management. As one patient recently told a Boston radio station, providers “just do not have the medications because they have run out [of] their allocation within the first week . . . It’s just that bad where I know I am gonna end up in the ER because I don’t have my medications.” Limits on prescribing withhold medical treatment from those who need it because of the inability of sweeping regulation to discern need.

Evidence suggests that these policies have been counterproductive if the end goal is to decrease overdose deaths. A study of Proscription Drug Monitoring Programs in New York state finds that “prescription opioid morbidity leveled off following the implementation of a mandated PDMP although morbidity attributable to heroin overdose continued to rise.”[7] These results are consistent with the view that restrictions on prescribing induce substitution to more easily accessible—yet more dangerous—street drugs.

The fact that overdoses increased along with prescribing during the period before 2010 does not mean the prescribing caused the overdoses. Set aside the possibility that misreporting generated at least some of the measured trend in overdoses.[8] According to the Centers for Disease Control and Prevention, even if the increase in overdoses is entirely real, it occurred under strict restrictions on access to prescription opioids, and outright prohibition of other opioids such as heroin and fentanyl.

Since 2010, moreover, opioid prescribing has leveled off yet the opioid death rate has continued to increase, if anything at a faster rate than previously. A growing fraction of the recent deaths reflect heroin and fentanyl rather than prescription opioids. This illustrates perfectly the claim that more restrictions generate more dangerous use.[9]

Thus prescription opioids may have played a role in the deaths over this period, by increasing the number of people who would be tempted by the black market. Had the increase in prescribing occurred in a legal market, however, the vast majority of the deaths would not have occurred.

Opioid overdoses have increased substantially in the United States—this fact is undeniable. But the increased prescribing did not by itself cause the increase in overdoses; instead, restrictions on access cause overdoses by diverting consumers to the black market. If consumers could easily obtain opioids, no black market would arise, thus decreasing the violence, uncertainty of dosage, and ultimately opioid overdose deaths.

In addition to increasing overdoses, prohibition harms users and society by increasing violence and corruption, exacerbating racial discrimination, infringing civil liberties, limiting medical research and uses, and eroding respect for the law.[10] Prohibition and other restrictions also raise the costs of using opioids for those who benefit from such use, whether for medical or any other purposes.[11] VerBruggen puts forth an impassioned yet ultimately unpersuasive essay echoing the standard narrative of the opioid crisis—that prescriptions should be limited because an increase in prescriptions has caused the spike in deaths. This account fails to recognize that prohibition and associated restrictions—not prescribing per se—bear the primary responsibility for this human tragedy.

[1] A. Reed Thompson and James B. Ray, “The Importance of Opioid Tolerance: a Therapeutic paradox,” Journal of the American College of Surgeons 196:2 (2003), doi: 10.1016/s1072-7515(02)01800-8.

[2] Shepard Siegel et al., “Heroin ‘Overdose’ Death: Contribution of Drug-Associated Environmental Cues,” Science 216:4544 (April 23, 1982), accessed October 24, 2017.

[3] Arnold S. Trebach, The Heroin Solution (Yale University Press, 1982).

[4] Jeffrey Miron and Jeffrey Zwiebel, “Alcohol Consumption During Prohibition,” American Economic Review 81:2 (May 1991), accessed October 24, 2017, doi: 10.3386/w3675

[5] See Thomas Coffey, The Long Thirst: Prohibition in America, 1920-1933 (W.W. Norton, 1975).

[6] Maria Patrizia Carrieri et al., “Buprenorphine Use: The International Experience,” Clinical Infectious Disease 15:43 (December 2006), accessed October 24, 2017.

[7] Richard Brown et al, “Impact of New York Prescription Drug Monitoring Program, I-STOP, on Statewide Overdose Morbidity,” Drug and Alcohol Dependence 178 (September 1, 2017),  accessed October 24, 2017.

[8] Lynn R. Webster and Nabarun Dasgupta, “Obtaining Adequate Data to Determine Causes of Opioid-Related Overdose Deaths,” Pain Medicine 12: Suppl 2 (2011), doi:10.1111/j1526-4637.2011.01132.x.

[9] Miron (2017), “The Opioid Epidemic,” manuscript in progress.

[10] Jeffrey A. Miron and Jeffrey Zwiebel, “The Economic Case Against Drug Prohibition,“ Journal of Economic Perspectives 9:4 (1995), doi:10.1257/jep.9.4.175.

[11] See Miron and Zwiebel (1995) for a more detailed discussion of prohibition’s adverse impacts generally.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on November 14, 2017 at 11:34:33 am

Legalization of drugs steps on too many feet. The DEA lost the war on drugs 40 years ago, but still fights on because their livelihoods depend on it. Thousands of petty bureaucrats pick up their monthly paychecks based on doing a job that's failing. Politicians use the war to virtue signal, forgetting that the war is a dismal failure. Meanwhile, people with severe pain issues are finding it harder and harder to get relief because doctors are afraid of the government. This is what you get when the government gets involved in healthcare.

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on November 14, 2017 at 13:33:31 pm

It appears that the recent sharp rise in deaths from fentanyl-based heroin is strongly correlated if not causally-tied to the recent intensification of restrictions on opioid availability. If drastically curbing the availability of opioids is both killing opioid addicts AND harming people who need pain medication, then it would seem obvious that the fed's are headed in the wrong direction.

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Image of timothy
on November 14, 2017 at 19:02:22 pm

Excellent post, Jeff.

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David R Henderson
on November 18, 2017 at 16:13:57 pm

I agree 100% with this argument for legalization. As a citizen living with a lifelong incurable and painful medical condition (Crohn's disease), and as a medical professional with 10 years spent as a paramedic on ambulances, and more recently, another 17 years as a registered respiratory therapist, I can speak (albeit anecdotally) with some authority based on my observations over all these years...
Although I never developed a full-bore addiction to pain medication, over more than 20 years of relatively frequent use, I did develop an extreme tolerance to opioids. They stopped working as well as they did initially, and their duration of action dropped off dramatically.
Over time, as my need for bigger and more frequent doses began to worry me and my doctor, the federal government got in on the act, started busting many of the "pill mills," and began threatening all MD's whose prescriptions reached or exceeded the arbitrary maximum set by the DEA.
Instantly, I was cut back to much lower doses, and my doctor grew more and more reticent to supply refills. Worse, the government threats caused ALL medical staff to view requests for pain meds with suspicion, and even disdain. The stigma of having to beg for pain relief was one of the most profoundly humiliating periods in my life. I felt very betrayed by the system that had put me on that path in the first place.
Finally one day I actually called a different doctor and faked a kidney stone just so I could get the pain relief I needed, but it was also a watershed event.
Fortunately, my years at work seeing people suffer the horrors of addiction set off alarm bells in my head. I began to recognize that regardless of whether my pain was being adequately controlled, the amount of drug in my blood was also beginning to put me at great risk. A minor fender-bender could require a blood draw, and even though I was sober as a judge, I could've easily been convicted for DUI, based solely on the level of it in my blood.
I decided it was no longer worth the trouble, and I stopped taking it on the spot. Misery ensued, but I'd had enough of the humiliation, derision and judgment from my doctor, from his staff, the pharmacy I used, and anyone else who looked at me sideways because of my "weakness," that I didn't care if it killed me.
This is where my story diverges from the stories of many, many other people... I was lucky enough to have the presence of mind and the sheer will (or rather, pride and anger) to see where I was heading and get out... while this is where most addicts made the fateful decision to just "try" street opiates.
And that's usually the beginning of the end.
Heroin– especially the high-quality pure stuff being imported from Mexico these days, usually claims it's user from the very first use. Not only is the high SO much more euphoric than pills, but it's also much CHEAPER, I'm told by the addicts I care for, and the police in the E.R...
Over the months after I gave up having pain relief, I suffered not just the usual pain from my Crohn's, but myriad other aches and pains and cramps and I felt like I was passing kidney stones practically every day. I was really just miserable.
An MD colleague and friend of mine who knew my history, noticed I wasn't doing so well, and asked about what was going on.
So I told him, and the next thing I knew he was scribbling out a prescription for buprenorphine. My initial response was to say "thanks, but no thanks!", and to walk away, but after he explained it wasn't a "pain pill" and the way it works, by occupying the pain sensors and blocking pain messages from being sent to the brain. I opted to give it a try.
I instantly felt normal again within 30 minutes of the first dose. I've been tapering down gradually since, without the constant fire in my torso, and with better energy than I've felt in a long time. This stuff is like a miracle for people who end up with physical dependence or tolerance to opioids, legal or not.
Consequently, we would be SO MUCH better off to decriminalize street drugs, make them a legitimate taxable commodity, and save the BILLIONS of dollars per year we waste on drug enforcement, and invest a little of it into getting people safely off opioids.
Meanwhile, we would keep from sending BILLIONS and BILLIONS of dollars to vicious, brutal, murderous drug cartels in Mexico, and as we starve them out, we would be able to help restore Mexico's wealthy economy...

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Image of Blake
on December 07, 2017 at 04:37:22 am

Using drugs for a legitimate medical purpose is not at issue here.

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Image of Zeke
on March 29, 2018 at 22:35:47 pm

but when the controlled narcotic you use for legitimate pain becomes public enemy 1#, it creates stigmas and when the ristrictions on said narcotic force doctors to have to choose between treating their patients or keeping their license

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.