The classification has been temporary since 2018, but is a stricter approach to opioid addiction the right answer permanently?
The opioid crisis was already being called an epidemic several years ago, but hit a record high 93,000 U.S. deaths in 2020. That marks a 29 percent increase over 2019’s then-record 72,000 such deaths, as overdoses surged because lockdowns and other restrictions made treatment more difficult to obtain during the COVID-19 pandemic.
More than 60 percent of these deaths now involve fentanyl, an exceptionally powerful pain reliever that’s potentially fatal by itself if used in excessive quantities, and which is increasingly being mixed in with other drugs. Fentanyl can be up to 100 times more potent than an equivalent amount of heroin. Experts say 2020’s record death number likely wasn’t caused by notably more people using opioids, but rather the proliferation of fentanyl into the supply of opioids and other drugs among existing users.
The Drug Enforcement Administration (DEA) categorizes drugs into five “schedules” depending on their danger and potential for addiction or abuse. Schedule I is the strictest, including heroin, LSD, ecstasy, and (controversially) marijuana. Fentanyl is usually listed in Schedule II, alongside the likes of cocaine, meth, OxyContin, Adderall, and Ritalin.
Fentanyl and fentanyl-like analogues have been temporarily placed under Schedule I status since February 2018, starting a few years after the opioid crisis truly began in earnest. That classification has been temporarily extended several times, most recently in May when Congress enacted the Extending Temporary Emergency Scheduling of Fentanyl Analogues Act to temporarily extend the Schedule I status through October 22.
That wasn’t particularly controversial, passing the House by voice vote and the Senate by unanimous consent, both procedures used for relatively noncontroversial legislation. But a similar proposal has divided members of Congress along party lines.
What the legislation does
The Stopping Overdoses of Fentanyl Analogues (SOFA) Act would make fentanyl-related substances Schedule I permanently.
What supporters say
Supporters argue the legislation is necessary for public safety amid a crisis that seems to be spiraling out of control.
“[The U.S.] experienced record levels of drug overdose fatalities last year as the COVID-19 pandemic disrupted life as we know it. Fentanyl — which is more potent than morphine and heroin — was a major factor in thousands of these deaths,” Rep. Fitzgerald said in a press release. “As a Wisconsin state senator, I worked to unanimously pass fentanyl scheduling legislation… Too many families have lost loved ones to drug overdoses. This legislation plays a critically important role in ending the abuse of this often life-destroying substance.”
“Families throughout Wisconsin and America have been devastated by the epidemic of opioid overdoses,” Sen. Johnson said in the same press release. “ The SOFA Act will close a deadly loophole in current law that is being exploited by illegal drug manufacturers. The bill gives law enforcement the tools to quickly schedule fentanyl analogues as they are identified, hopefully saving lives.”
What opponents say
Opponents include some who supported the temporary classification of fentanyl into Schedule I, but who still argue that *permanent *legislation would result in an overly punitive legal approach to drug users.
“Class-wide scheduling [of fentanyl] would exacerbate pretrial detention, mass incarceration and racial disparities in the prison system, doubling down on a fear-based, enforcement-first response to a public health challenge,” more than 100 advocacy organizations including the American Civil Liberties Union (ACLU), Human Rights Watch, and NAACP wrote in an open letter to Congress.
These overdose deaths form a part of a broader wave of mortality associated with unemployment, alcohol poisoning and suicide, circumstances related to working class economic decline and mental health challenges,” the letter continued. “Focusing on drug interdiction does not address the root cause of these overdoses.”
“Skyrocketing prosecutions and criminal penalties have done nothing to stem the tide of these deaths, or to reduce the supply of harmful substances in our country,” it added. “Relying on jails to force individuals into painful, involuntary, and often unsafe withdrawal is not the solution. Now, more than ever, policymakers must turn to evidence and science, not fear, to find answers.”
Odds of passage
The House version has attracted seven cosponsors, all Republicans. It awaits a potential vote in either the House Judiciary or Energy and Commerce Committee.
The Senate version has attracted 10 cosponsors, all Republicans. It awaits a potential vote in the Senate Judiciary Committee.
Odds of passage are low in the Democratic-controlled Congress. In 2020, it didn’t even pass a Republican-controlled Senate, when Sen. Johnson’s prior version was approved in committee but never received a vote in the full chamber, then controlled by the GOP.