On October 12, the Supreme Court of the United States (SCOTUS) chose not to hear a lawsuit over Philadelphia nonprofit Safehouse. The embattled harm reduction group, which for the past several years has been on the frontlines of the fight to open legal safe consumption sites (SCS) in the US, vowed to keep pursuing the case in federal court.
Safehouse organizers asked the SCOTUS to review an earlier court decision that ruled against authorizing their proposed SCS. Their case has drawn support of both harm reductionists and criminal justice leaders, and some hoped that by filing with SCOTUS, Safehouse would compel President Biden to state his position for or against SCS.
That’s not what happened. Biden’s administration continues to be silent on SCS, even as cities and states around the country plan to pursue them.
“We were disappointed that the government chose not to respond to our petition,” Safehouse Vice President Ronda Goldfein told Filter. “They said, ‘We’re going to waive our right to respond,’ [and] the Supreme Court declined to review our case. Ordinarily that sounds like the end of the road—but in our case we are still pursuing our claims in a different venue.”
Trump-appointed federal prosecutor William McSwain first sued Safehouse in February 2019. McSwain alleged that an SCS would violate the federal “crack house” statute, which prohibits “drug trafficking” on private or public property. The statute dates back to a 1986 law authored by then-Senator Joe Biden.
In February 2020 Safehouse won the case—but then, just days after the victory, Philadelphia residents opposed to the SCS circulated a petition to prevent it from opening. The petition was successful. And in January 2021, an Appeals Court reversed the earlier ruling in Safehouse’s favor and expressly forbade it from operating an SCS. In August 2021, Safehouse requested that SCOTUS review the decision. Now, SCOTUS has declined.
Disappointed but not surprised U.S. Supreme Court declined to hear our case. We’re pursuing our claims in federal court. As that litigation proceeds, Biden administration will have to take a position, which it avoided by waiving its right to respond to our Supreme Court petition.
— Safehouse (@SafehousePhilly) October 13, 2021
Safehouse will now go back to the Philadelphia federal district court, for which organizers have prepared three main arguments. First, they will make the case that the Religious Freedom Restoration Act (RFRA) gives Safehouse the right to operate an SCS based on the First Amendment right to religious expression.
“If I have a sincerely held religious belief, the government cannot take actions that burden my religious belief unless there’s a compelling interest to do so,” Goldfein said. “The court cannot tell us we’re not allowed to follow our faith. In this instance we say, ‘As people of faith and conscience, we believe that if you can save a life, you must save a life.’”
Their second argument focuses on the Commerce Clause, which gives Congress the power to regulate inter-state trade. “What we’re proposing is a completely state-contained activity,” Goldfein said. “We’re not expecting people from other states to fly or drive into Philadelphia just because they would be able to use drugs safely in Philadelphia.”
The third argument draws on the Supreme Court’s ruling in Fulton v. Philadelphia, which ruled that courts can make narrow exemptions to federal laws in cases where the organization has a religious interest.
There is also the fact that federal prosecutors can simply choose not to prosecute SCS. Only 24 people were sentenced by federal courts in 2017 for “maintaining a drug-involved premises,” among 19,750 people sentenced on federal drug charges.
In the SCOTUS setting, the Biden administration wasn’t required to respond. “But in our federal district court lawsuit, they must respond,” Goldfein said. “If they don’t respond, they lose.”
That response is due November 5.
Photograph of a safe consumption site in Canada by Matthew Bonn