INTRODUCTION 6 BACKGROUND 10 A. The drugs that have caused the epidemic 10 1. The difference between opioids and opiates 10 2. Why the government has an interest in this particular issue 11 B. The rise of painkiller use and abuse in the United States. 12 1. States like Ohio have taken action 13 C. Heroin is an epidemic throughout the nation that needs to be fixed 15 1. What is heroin? 15 2. Negative heroin statistics are rising at frightening rates throughout the country 17 3. Naloxone: The "miracle" antidote for heroin overdoses 19 4. Governmental action taken to attempt to combat the rising problem 20 D. An Introduction to the case of National Federation of Independent Business v. Sebelius 22 ANALYSIS 23 A. The Solution: A Congressional Mandate 23 B. Congress has the authority to make this mandate, but its authority does not stem from the Commerce Clause 25 C. Congress has the authority to mandate opioid and opiate rehabilitation under the Necessary and Proper Clause 28 D. Congress has the authority under the Taxing and Spending Clause to mandate insurance companies to cover rehabilitation and to mandate rehabilitation facilities to accept health insurance 31 CONCLUSION 32 INTRODUCTION
We have an epidemic in the United States. This epidemic is not one that medical researchers can find a drug to cure or a vaccine to prevent. This epidemic spans across all communities and now terrorizes high school and even middle school students. This epidemic is opiate and opioid addiction. With addiction rates already terrifyingly high, in the single year between 2013 to 2014, Ohio experienced a 18.3% increase. (1) Furthermore, sixty-two percent of all drug-related deaths in the United States are now caused by heroin and other opioids. (2) Recently, the demographic affected by this problem has shifted; the addiction is crashing into unsuspecting families and stealing the lives of some of the most promising youth in America. Heroin is no longer the drug we think of for "junkies" or the drug that is crippling our nation's poorest individuals. The epidemic has spread far and wide throughout the country, and there is no community or city immune to the devastating effects. It is, however, a drug that is not easy to discuss. There needs to be a change in order to save peoples' lives from this horrifying disease.
Twenty-nine-year-old David, a young man from Maine, who by society's standards, "had it made," lost a long, hard-fought battle to heroin. (3) David's family thought he was on the road to recovery, finally in a better place and shedding himself of the demon that had been inside of him for so long. (4) This was until David's father found him lying unconscious on the floor, needle on the bed, spoon on the nightstand, with the remnants of a crystalline substance glistening on it. (5)
David grew up in a small, affluent town in Maine with plenty of money and enough youthful independence to find himself wrapped up in something his parents never dreamed would eventually steal the life of their son. (6) Despite his parents' efforts to acclimate him to Broadway shows and help him develop an affinity for reading, more than anything, David wanted to be "cool" and accepted by his peers. (7)
David and his friends considered themselves the "black sheep" of their families and started smoking marijuana in middle school. (8) During high school, David's brother Kevin underwent surgery and the doctor prescribed him pain medication, OxyContin, which David and his friends would frequently use to get high and feed their growing addictions. (9) David's brother had an at-will prescription, meaning he could have it refilled whenever he wanted. (10) It was not long before David found himself buying more OxyContin in parking lots. (11) David and his friends felt invincible and never believed they would get addicted to the drugs because they were not poor, they were not from the inner-city, and for those reasons, they naively thought that the drugs would not affect them in that way. (12)
David and his friends made the jump from OxyContin to heroin when their regular supplier of painkillers ran out of the prescription medication, and they justified the switch because they "knew it was clinically basically the same drug." (13) Furthermore, an OxyContin pill was almost fifty dollars, whereas a packet of heroin was approximately ten dollars. (14) The boys snorted the heroin a few times a week because shooting up was something they only knew from movies; however, they started stealing money from their parents once they developed a higher tolerance and needed to get high in order to even feel "normal" or go about their days. (15)
It took several years for David to start shooting up because he had an aversion to needles, but he watched his friends do it and eventually needed the stronger high so badly that he succumbed and began injecting the drug. (16) Ultimately, the heroin that took David's life was cut with fentanyl, an even stronger and more dangerous pain killer that heroin suppliers are selling to unwitting addicts because it is even cheaper than heroin. (17)
The heroin epidemic is ripping families like David's apart, thrusting them into a state of devastation. Kids who have been afforded every opportunity to succeed are getting hooked on this drug and their lives are ending before they have really begun. Each year, the staggering statistics reach shocking new heights. As such, state and federal governments are frantically trying to pass legislation to combat the opiate crisis in the United States. (18) In 2015, Ohio Governor John Kasich signed House Bill 4 into law which allows civilians to purchase naloxone, a drug that, if administered in time, is able to reverse the effects of an opiate overdose without a prescription. (19) With readily available naloxone, commonly known under its brand name Narcan, officials hoped that the overdose rates would decline. (20) However, allowing civilians to purchase the overdose-reversal drug without a prescription is not causing fewer people to overdose. (21) Instead, the introduction of Narcan has led opiate addicts to push their tolerance to the edge, as they now possess a 'saving grace' that will allow them to cheat death if they find themselves on the verge of an opiate overdose. (22) Narcan has led addicts to frequently overdose, and for some people this means overdosing several times in a row because they have the confidence that they will not actually lose their lives to the drug. (23)
Ohio has gone through a transformation in its prescription drug laws. Most heroin addicts do not simply pick up a needle one day and inject themselves with a drug they know will kill them. Instead, many are already addicted to prescription opioids prior to their first heroin use and only change to heroin because it is cheaper than prescription pills, easier to find than painkillers, and provides a more intense high. (24) This precursor to heroin is extremely addictive, and by amending its prescription drug laws, Ohio may have found the solution to stop people from picking up the heroin needle. However, while making changes in prescription drug laws is one obvious solution, making these laws stricter will likely only help those not already addicted. For those who are already addicted, an increase in law enforcement will likely only result in negative consequences. One such consequence of amending prescription drug laws is that it may become more difficult for those addicted to obtain the substances, ultimately resulting in a turn to heroin use to obtain a similar high.
While many opioid addicts do ultimately turn to heroin, stricter laws surrounding prescription drugs could be an additional push that causes this change to happen more quickly. Thus, the only real solution to the problem is comprehensive legislative action. Congress must mandate that, under the Affordable Care Act, insurance companies pay for opiate and opioid addicts' rehabilitation and that rehabilitation facilities accept the insurance coverage. Currently there is a wide gap between what insurance companies will cover and what coverage the rehabilitation facilities are willing to accept. This could be a good first step in preventing people from turning to heroin in order to satisfy their addiction that began from prescription drugs. This legislative action must be federal because simply entrusting individual states to enact their own policies lacks the consistency necessary to cure this epidemic. Instead, Congress must be the entity to take action.
Since 2015, Ohio has required that doctors maintain a database in order to track the history of their patient's prescription drug use. (25) This database was created to help cut down on the number of opioids prescribed, and in turn decrease the number of overdoses that occur. However, 2.6 million people or approximately twenty-three percent of Ohio's population, were prescribed prescription opioids in 2015, three years after the advent of the medical database. (26) These more restrictive regulations have obviously not been as successful as legislators had hoped. Furthermore, although Ohio claims victory and progress against the opioid crisis through legislation such as House Bill 4 as well as a decrease in the overdose rate of the prescription pills, Ohio has still seen a recent surge in heroin overdoses. (27)
This Note begins with a discussion of both the national opioid problem as well as the specific epidemic in Ohio, as an example of how it has grown within all of the states. Part II of this Note discusses the differences between prescription opioids and opiates, how they can be obtained, what effects they have on the human body, and why the government has an interest in this growing problem. Next, this Note explains how and why there was an increase in access and addiction to prescription opioid pain medication. Following this explanation, the steps the government has taken to try to rectify...