Giving a very close reading to Massachusetts statutes regulating the sale of hypodermic needles and authorizing the Public Health Department to set up needle exchange programs, the Massachusetts Supreme Judicial Court unanimously ruled on June 14 that there was no legal impediment to a private, non-profit group setting up a free needle-exchange program without the specific approval of local government authorities. The ruling came in response to an attempt by the Town of Barnstable to shut down a free needle exchange program in Hyannis, on Cape Cod, started by the AIDS Support Group of Cape Cod, referred to throughout Justice Barbara Lenk’s opinion for the Court as ASGCC. AIDS Support Group of Cape Cod, Inc. v. Town of Barnstable, SJC-12224, 2017 Mass. LEXIS 391 (June 14, 2017).
ASGCC started its “free hypodermic needle access program” in 2009, which it has been operating in Hyannis, Provincetown, and Falmouth. The program is intended to help reduce the spread of HIV and hepatitis C by making sure that injectable drug users have clean needles and no need to share used needles. ASGCC made no attempt to get approval for their program by the local town government, probably anticipating that it would be controversial and likely denied.
According to Justice Lenk’s opinion, “ASGCC seeks to ensure that its clients use a clean needle every time they inject opiates or other drugs. ASGCC therefore conducts an initial assessment of each person who requests needles or other services and provides only as many needles as staff believe will be necessary so that the client will be able to use a clean needle for each injection. ASGCC provides a collection receptacle for the return of used needles at its facility, encourages clients to return needles, and gives each client an individual ‘sharps container’ for storing used needles before they are returned, but does not require a return of the same number of needles distributed in order to provide additional needles.”
ASGCC also provide other free services such as medical case management, peer support groups, housing, nutritional programs, testing for HIV and other blood-borne conditions, and risk reduction strategies.
The current lawsuit got under way when town authorities claim to have discovered “improperly discarded hypodermic needles in public places” and determined that some of them came from ASGCC’s distribution activities. The town police hand-delivered a “warning” letter to ASGCC’s facility on September 22, 2015, and the town’s director of public health mailed a “cease and desist” order on September 23, 2015, threatening action against ASGCC if it continued to distribute needles.
ASGCC obtained assistance from GLBTQ Legal Advocates & Defenders (GLAD), a Boston-based public interest law firm, which filed suit on their behalf in the Massachusetts Superior Court. GLAD attorney Bennett Klein argued that the town’s order was not authorized by law and sought an injunction against enforcement of the town’s cease and desist order. Superior Court Judge Raymond P. Veary, Jr., issued a preliminary injunction and the case was certified for a quick appeal, eventually bypassing the Appeals Court and going directly to the Supreme Judicial Court due to the urgency of resolving the issue.
Massachusetts, like many other states, outlawed the sale, distribution and private possession of hypodermic needles except for those sold by licensed pharmacists to fill a prescription by a licensed physician. However, in 2006, in response to intense lobbying by HIV prevention groups and public health officials, the legislature amended the statute to regulate only sales, removing criminal penalties for possession, and authorizing the Department of Public Health to operate non-sale needle exchange programs with local approval.
In defending against ASGCC’s lawsuit, the town argued that under the statute needles can only be legally obtained in Massachusetts either from a licensed pharmacist filling a prescription or from the needle exchange program operated by the Department of Public Health with local government approval.
The Court agreed with GLAD’s argument that this is not what the statutes provide. For one thing, the criminal penalties for sale by anyone other than a licensed pharmacist do not logically apply to ASGCC’s programs, because they are not selling the needles. They distribute them for free to those who qualify to participate in the program. Furthermore, the only free needle distribution programs that require local government approval under the statute are those operated by the state Department of Public Health.
“The statutory language is clear that programs such as ASGCC’s are not prohibited,” wrote Justice Lenk, “the legislative history does not evidence an intent to the contrary, and interpreting the two statutes to allow private entities to operate non-sale needle exchange programs does not give rise to an absurd result,” contrary to the town’s arguments.
On the contrary, what the Court would consider to be “absurd” was the town’s argument that the statutes restricting sale of hypodermic needles apply to ASGCC’s free-distribution program, or that by authorizing the Department of Public Health to set up needle exchange programs, the legislature was somehow, without saying so, making those programs the only venue for free distribution of needles. Indeed, one could argue that by decriminalizing private possession of needles and restricting sales to licensed pharmacists, the legislature was leaving unregulated the free distribution of needles. But the Court did not have to go that far, merely to find that there was no applicable statutory restriction that would support the town’s cease and desist order.
The town argued that the legislature had “anointed” the pharmacists as the “gatekeepers” of “sale and distribution” of hypodermic needles. But the statute does not forbid non-sale distribution by those who are not pharmacists. The town pointed to failed legislative proposals that would have specifically allowed non-profit groups like ASGCC to distribute needles, and argued that the legislature’s intent to ban such programs could be inferred from the failure to pass such bills. The Court refused to go down the road of reading an affirmative legislative prohibition into the failure of the body to pass a bill.
The possibility that an adverse ruling in this case could spell the end of free needle distribution programs in Massachusetts drew wide attention to the case. The Court receiving a joint amicus brief from a wide array of HIV, LGBT, and professional public health organizations arguing against the town’s position. Despite evidence that needle exchange programs administered by non-governmental community based groups have been effective at reducing the rate of HIV transmission through shared hypodermic paraphernalia, such programs are still controversial in many parts of the country. Although the Court’s opinion did not explicitly review policy arguments supporting such programs, the opinion may add support to efforts elsewhere to establish such programs where they don’t presently exist.