Pill Licensing: SCOTUS Confronts Physicians’ Good Faith Defense of Illegal Distribution of Controlled Substances
When is a doctor a doctor and when is a doctor a drug dealer? In early March, the United States Supreme Court heard oral arguments in two consolidated cases—Ruan v. United States and Kahn v. United States… to indicate where this line is drawn. Since the mid-1970s, physicians who prescribe controlled substances have not been prosecuted for illegal distribution under the Controlled Substances Act, unless such prescriptions “fall outside the ordinary course of professional practice”. United States vs. Moore, 423 U.S. 122, 124 (1975). If a physician prescribing controlled substances mistakenly believes they are acting within the usual scope of professional practice, that sounds like medical malpractice, but is it also a crime? The court granted certiorari in Roan and Kahn to answer a split circuit on whether a physician who prescribes controlled substances can be found guilty of unlawful distribution under 21 USC §841(a)(1) regardless of whether, in good faith, this physician believed that the prescriptions were within an acceptable course of professional practice.
The issue at stake in Roan and Kahn seems poised to adapt to a pattern of recent cases where the Supreme Court has addressed interpretations of criminal statutes that threaten to go too far. In cases like Bond c. United States572 US 844 (2014), Yates v. United States574 US 528 (2015), and more recently in Van Buren v. United States, 141 S.Ct. 1648 (2021), the Supreme Court narrowly construed broadly worded criminal statutes based on a narrow, and sometimes strained, analysis of statutory language. In these cases, the court has sometimes acknowledged the broader problem of overcriminalization through laws that may sweep away innocent or de minimis conduct, but nevertheless anchors its decisions in the text – without expressly relying on more judicial doctrines. wide. The arguments of the parties and the comments of the judges during the pleadings in Roan and Kahnhowever, hint at the possibility of the court breaking with its recent model and delineating the line between medical malpractice and criminal drug trafficking on a deeper doctrinal basis – the fundamental principle of criminal law that every statutory element distinguishing a lawful behavior of unlawful behavior must be done with mens rea.