New Mexico the Latest State to Advance a Safe Consumption Site Bill

    Exactly a week after the Rhode Island Senate passed a bill that would set in motion the state’s establishment of safe consumption spaces, a bipartisan majority of the New Mexico House of Representatives voted in favor of legislation to bring sanctioned overdose prevention programs (OPP), as they’re being called, to the southwestern state.

    On March 2, the New Mexico House passed HB 123—a bill authorizing municipalities and counties to establish and operate OPPs in compliance with guidelines to be formulated by the Department of Health by October 1. It also provides individuals with “limited immunity” from criminal punishment or other penalties for simply being involved with the OPP.

    The bill has been introduced in the Senate, and referred to the Judiciary Committee and the Public Health and Affairs Committee. The fast-approaching end of the current legislative session, on March 20, represents a significant challenge—and neither committee, according to the Senate website, appears to have scheduled the bill for review at publication time. If the bill does become law, OPPs will be legalized on January 1, 2022.

    “Drug overdose is a public health crisis and we need innovative policies to help individuals, families and communities recover from addiction,” said New Mexico Representative Deborah Armstrong, sponsor of the bill and chair of the House Health and Human Services Committee, in a February 17 press release after a committee approved the bill.

    In 2020, like elsewhere in the country, New Mexico saw a record-breaking number of overdose deaths. Other alarming harms associated with injection drug use have also cropped up in the state recently: In January 2021, at least one person who injects drugs was confirmed to have developed a case of wound botulism. The person’s black tar heroin is suspected to have been contaminated; skin-popping the substance is known to be associated with the illness. A second case is now suspected, according to the New Mexico Department of Health.

    The OPPs will be tasked, per the legislation, with functions common to the approximately 120 other sanctioned facilities of this kind around the world. The first two are obvious: They will “provide a safe and hygienic space supervised by trained staff where a person may consume pre-obtained drugs;” and  they will “monitor participants for potential overdose and provide care as necessary and as permitted by law to prevent fatal overdose.” Another feature is less readily apparent but just as important: The OPPs will “provide access or referrals to substance use disorder treatment services, medical services, mental health services or social services.”

    “No one from the community showed up to voice opposition.”

    “These programs work,” said Rep. Armstrong. “They prevent overdoses, keep dirty needles out of public spaces, keep people out of jail and get people the help they need.” The extensive research literature agrees. A 2017 systematic review found that such services are associated with area-wide reductions in overdose and risky injection practices, as well as increased uptake of substance use disorder treatment along with cessation of injecting illicit drugs. A 2020 study of an underground safe consumption site showed that the public health wins from around the world translate to the United States.

    Elsewhere in the country, bids for OPP-type programs have attracted both legal and community backlash. In Philadelphia, a Trump-era federal prosecutor sought to preemptively halt Safehouse, a harm reduction organization, from opening the country’s first safe consumption space. Even after briefly being greenlit by a district court judge, Safehouse chose not to open its doors due to conservative community blow-back. In January 2021, a federal appeals court overturned the earlier district court decision, once again making SCS unlawful.

    Originally inspired by California’s OPP legislation, New Mexico bill seems to be crafted in line with the legal arguments raised in Safehouse’s defense, namely that the point of safe consumption spaces is to protect the health of people who use drugs, not to facilitate drug use per se. In the case of Safehouse, attorney Ilana Eisenstein described the purpose as for “saving lives,” not to “make available for use […]  the place for the purpose of […]  using a controlled substance,” as federal law prohibits. The text of the New Mexico bill makes this distinction: OPPs are “for the purpose of reducing death, disease or injury due to the use of controlled substances.”

    Still, OPPs could be vulnerable to federal prosecution, though the likelihood of that is unclear, given the Biden administration’s purported pivot towards harm reduction.

    As for community objections, they seem nowhere to be seen. “Honestly there has not been any real opposition to the bill, other than a handful of  legislators who have expressed opposition, as it moved through the House,” Emily Kaltenbach, the senior director of Resident States and New Mexico for the Drug Policy Alliance* and an expert advising Rep. Armstrong, told Filter. “No one from the community showed up to voice opposition.”

    Rep. Armstrong believes that her constituents support OPPs from both personal experience and preference for evidence-based policies. “Unfortunately, too many of my constituents have a friend or family member struggling with addiction. They see firsthand that the usual ways of addressing addiction aren’t working,” she told Filter. “My constituents fully support innovative, proven, data-driven policy initiatives, like this overdose prevention program, that will save lives in our communities. The bill has not been met with opposition.”

    New Mexico has a legislative history of progressive drug policy. It was the first state in the nation to pass a Good Samaritan law, albeit limited, to protect from prosecution people who call 911 in response to overdose. In 2018, the House, led by Rep. Armstrong, directed a committee to hear testimony about the worth of injectable opioid agonist treatment. And on March 1, the New Mexico House passed HB 46, a bill that would authorize $150,000 in funding for a demonstration study by the University of New Mexico. Also in this legislative session, the Senate is reviewing an amendment to the 1997 law that made New Mexico the sixth state to authorize syringe service programs. The change explicitly directs the Department of Health to distribute safer smoking and sniffing materials, in addition to safer injection supplies, and provide drug checking technology.

    OPPs have garnered interest among New Mexico’s politicians for years. In 2012, Senator Richard Martinez successfully passed Senate Memorial 45, basically a resolution requesting the University of New Mexico to complete a study “exploring the feasibility of implementing a pilot medically supervised injection site, staffed with medical professionals.” Filter was unable to obtain a copy of the study by publication time. More recently, lawmakers have received a presentation from a Canadian safe consumption program, as Rep. Armstrong recounted in House proceedings before the March 2 vote.

    “I’m optimistic that it will pass the two committees, if time allows, and I’m optimistic about a Senate floor vote.”

    Currently, no New Mexico jurisdiction has formally announced an intention to pursue an OPP if the bill is passed, although a City of Santa Fe task force recommended in 2018 “legislation allowing and funding the implementation of supervised consumption spaces.” As yet, there’s no New Mexico equivalent of Philly’s Safehouse; Kaltenbach said that she knows individual advocates who are interested in getting involved in efforts as they materialize. The Department of Health, under Governor Michelle Lujan Grisham, has expressed interest in OPP, Rep. Armstrong said in the March 2 meeting, and staff have even visited a Vancouver program.

    Rep. Armstrong says she is “optimistic” about the Senate approving the bill, and is “hopeful” that the Governor will sign it.  “Time, however,” she said, “is the biggest challenge we face,” given the impending end of the legislative session. Kaltenbach echoed the Representative’s assessment.

    “New Mexico has a long history of leading in innovative harm reduction,” Kaltenbach added, “and this is an important moment to set an example for other states and do it again.”

    Photograph of the New Mexico State Capitol by Ken Lund via Flickr/Creative Commons

    *DPA previously provided a restricted grant to The Influence Foundation, which operates Filter, to support a Drug War Journalism Diversity Fellowship.

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