How Treating Addiction as a Disability Could Transform Treatment
Reading Time: 7 minutesWhy addiction should be classified as a disability.
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Orange County, California, is densely developed, home to nearly 3.2 million people—which makes it more populous than almost one-third of U.S. states. It is also home to a significant number of intravenous drug users. There is strong evidence that one of the best interventions for treating intravenous drug use is providing free needles and related services (such as education on overdose prevention and testing for diseases like HIV) through needle exchanges or syringe services programs, also known as SSPs.
But unfortunately, following a phenomenon that’s been replicated throughout the country, SSPs have been subject to constant legal threats. In 2019, the major cities of Orange County successfully sued to block a mobile SSP funded by the state, citing the litter of used syringes as a primary concern. The last needle exchange in Orange County was shut down in early 2022 after its permit was revoked on the grounds of a zoning violation. As a result, in Orange County there is currently not a single SSP.
Cases like these constitute a crisis in addiction treatment, and they demand a new approach to defending the rights of addicted people. A number of scholars, attorneys, and activists have proposed responding to this crisis with an idea already established in American law: that addiction is a disability.
Drug addiction is ubiquitous—in 2021, 24 million people met the criteria for a drug use disorder—yet it is also deeply stigmatized. A 2014 article by researchers from Johns Hopkins found that 54 percent of people believe landlords should be allowed to deny housing to people with drug addiction, while 64 percent believe employers should be allowed to deny employment and 90 percent would be unwilling to have a member of that group marry into their family.
These attitudes are a barrier to interventions that assist people with drug addictions, especially ‘harm reduction’ measures, which aim to limit the harms associated with drug use. Consider again syringe services programs like the ones shuttered in Orange County: The CDC estimates that they reduce the incidence of HIV and hepatitis C by 50 percent, in addition to promoting overdose prevention through education and distribution of naloxone, an overdose reversal medication.
Harm reduction measures are often motivated by the idea that addiction is fundamentally a medical concern, one that can be understood as a kind of disease. The disease model of addiction, once a controversial academic proposal, is now somewhat orthodox, taken as definitional by the American Society of Addiction Medicine and adopted by many recovery communities. If we think of addiction as a disease, then disputes about syringe services programs and other interventions are fundamentally disputes about how to weigh the recommendations of physicians and public health experts (who tend to advocate for these programs) against the preferences of local residents and politicians (who often resist SSPs).
But there is another way of thinking about addiction: recognizing it as a disability. Indeed, alcohol and drug addiction are legally recognized as disabilities under the Americans with Disabilities Act passed in 1990. Disability recognition under the ADA comes with a number of protections, which are fundamentally protections against discrimination: A person with a disability is entitled to equal opportunity in employment and cannot be discriminated against by either government entities or private facilities. If addiction is a disability, then the terms of the debates over SSPs shift. In prohibiting SSPs, government officials are not merely prioritizing resident complaints over medical recommendations. They are actively discriminating against a protected class. Such discrimination is both morally objectionable and prohibited under federal law.
There is, however, opposition to the idea that addiction is a disability, even among those who are working to combat discrimination and stigma against addiction. Some are concerned that understanding addiction as a disability is pathologizing. This is a real concern, and indeed, as Rebecca Bunn, writing in the journal Contemporary Drug Problems, points out, some of the very legal decisions that treat addiction as a disability also represent ‘addiction to illicit drugs as fundamentally risky, dangerous, and disordered.’ The proper response to these legitimate concerns about stigma, though, is not to reject the idea that addiction is a disability but rather to adopt a more robust, expansive, and accurate understanding of disability itself.
One way to approach the idea that addiction is a disability is by considering the discrimination to which people with addictions are subject. One of the major themes of disability scholarship in recent decades has been that disability is deeply connected to a person’s environment. ‘The one thing that unites most people within disability studies,’ said Joseph Stramondo, associate professor of philosophy at San Diego State University and president of the Society for Disability Studies, ‘is the simple notion that at least some of the disadvantages that disability presents are not biological or physiological, but rather social or political.’
These forms of social and political disadvantage are part of what make addiction a disability. Understanding addiction this way requires a certain broadening of our idea of what counts as a disability. But it is an expansion that at least some disability advocates and people with addictions will welcome. The most important element, Stramondo said, is ‘individuals accepting or rejecting the identity for themselves.’
Recently, a number of attorneys and legal scholars have begun to explore the legal ramifications of the proposition that addiction is a disability. A 2022 article in the Yale Journal of Health Policy, Law, and Ethics, for example, argues that ordinances imposing zoning restrictions on SSPs, such as prohibiting them near residential neighborhoods, are discriminatory on their face.
‘It is rare these days to find a statute that is facially discriminatory. We saw those, of course, back in the Civil Rights era, where you would have laws that clearly discriminated against a particular race, for example,’ said Corey Davis, director of the Harm Reduction Legal Project at the Network for Public Health Law. (Davis is familiar with the article but not one of its authors.) ‘But if you have a statute … that imposes very stringent zoning restrictions on methadone clinics, and nothing else, that’s a facially discriminatory statute, like that statute was clearly saying: We don’t want the methadone clinic and the people who would use it anywhere except over here.’ A facially discriminatory law that targets a protected class—such as race, or, under the ADA, drug addiction—will almost always be invalid, regardless of its intent or its application.
The ADA is therefore a potentially transformative instrument for protecting the rights of people with addictions—but there are also plenty of obstacles. One is the so-called ‘current use exception.’ Under the ADA, people who use drugs (other than alcohol) count as disabled only if they are not currently using drugs. (What counts as ‘current’? This is a question on which the law is not entirely clear, although courts have tended to require that a person go some reasonable length of time—more than a few hours or days—without using.) This exception is sometimes invoked to deny protections to people who are actively using substances.
‘Jails and prisons see that and say, ‘Oh, if you’re currently using drugs, we’re not required to provide this treatment.’ And that’s what happens a lot, unfortunately,’ said David Howard Sinkman, a senior fellow at the Northeastern University School of Law and former assistant U.S. attorney for the Eastern District of Louisiana. However, Sinkman said, this exception does not apply in cases where a person needs medical care. Thus, the ADA does in fact protect a range of treatment programs for people who are currently using drugs—contrary to the way the ‘current use’ exception is often understood.
When he served as an assistant U.S. attorney in Louisiana, Sinkman conducted outreach to local law enforcement about the requirement to provide prescribed medications for opioid use disorder under the ADA. ‘The vast majority of the nation’s jails and prisons ban the provision of lifesaving, FDA-approved, and doctor-prescribed drug treatment to those struggling with opioid use disorder,’ Sinkman wrote in a 2022 article co-authored with Gregory Dorchak, assistant U.S. attorney for Massachusetts. ‘Such [medication] restrictions violate the ADA and prevent hundreds and thousands of inmates each year from receiving medical treatment they are entitled to.’ This approach is now reflected in federal guidance: In April 2022, the Department of Justice explicitly instructed that denial of medications for opioid use disorder constitutes prohibited discrimination under the ADA.
The protections afforded by the ADA do not apply only to SSPs, medication, and other medical services. Consider housing. People with a history of drug or alcohol use often face discrimination in securing a place to live. Yet, under the ADA, this is illegal discrimination against a protected class, whether it comes from a state agency or a private landlord. Protections for people with addictions extend into the workplace as well, not only forbidding discrimination but also requiring that people with alcohol addiction, or a history of drug addiction, be provided with reasonable accommodations.
While the protections promised by the ADA are transformative in theory, they’re not always enforced in practice. Further complicating matters, the ADA is not the only law that governs substance use, and it sometimes conflicts with other federal laws. Consider safe injection sites, where individuals can use intravenous drugs with resources (including medical treatment) ready on site. Such sites have proven to be crucial supports for drug users, but they also may fall afoul of the federal ‘crack house’ statute, which prohibits the establishment of facilities for drug use. In 2021, in the case of United States v. Safehouse, the 3rd Circuit Court of Appeals ruled that a safe consumption site in Philadelphia was in fact in violation of the statute. In the court’s decision, said Sinkman, ‘You won’t see the word disability, you won’t see the word ADA. … There may be a conflict between the ADA and the Controlled Substances Act in regard to safe consumption sites.’
As a result, protections for some interventions may depend on how the federal government decides to prioritize the ADA relative to other potentially conflicting laws. ‘For a lot of harm reduction services to operate effectively, enforcement discretion is often going to be a part of it,’ said Alex Kreit, director of the Center of Addiction Law and Policy at the Chase College of Law. ‘You might need the federal government to expressly say: We’re just not enforcing the law here.’
The ultimate resolution of United States v. Safehouse, as well as the scope of the ADA’s protections for addiction, remain undecided in the courts. In the meantime, we need to understand addiction as a legal issue as well as a medical one. From this perspective, the crucial fact about addiction is that it is a protected disability, and we should be concerned not only with providing appropriate treatment to people with addictions but also with ensuring that their rights as fellow citizens are adequately protected.
State of Mind is a partnership of MediaDownloader and Arizona State University that offers a practical look at our mental health system—and how to make it better.
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