State Regulatory Responses to the Prescription Opioid Crisis: Too Much to Bear?

In order to prevent further overuse of prescription opioids, states have adopted a variety of strategies. This article summarizes the growing use of prescription drug monitoring programs, crackdowns on “pill mills,” prohibitions on the use of particularly hazardous opioids, limitations on the duration and dosage of prescribed opioids, excise taxes, physician education and patient disclosure requirements, public awareness campaigns, and drug take-back programs. Although occasionally challenged on constitutional grounds, including claims of federal preemption under the Supremacy Clause, discrimination against out-of-state businesses under the dormant Commerce Clause doctrine, and interference with rights of commercial free speech, this article evaluates the possibility that patients might have substantive due process objections against the more aggressive initiatives for unduly burdening a fundamental right of access to narcotic analgesics. In particular, if these regulatory efforts put substantial obstacles in the way of terminally-ill patients seeking palliative care, then states would face a difficult burden of justification.