By Daniel G. Orenstein, J.D.
At the urging of public health and harm reduction advocates, Congress repealed a 21-year-old ban on federal funding for syringe/needle exchange programs (SEPs) in December 2009.  Just two years and one Congressional election later, the ban reappears in a single provision of the massive omnibus spending bill passed by Congress in December 2011.  Despite his administration’s stated opposition to the ban,  President Obama signed it into law a few days later due to the hard-fought nature of the larger bill, which is the primary appropriation vehicle for federal government operations for the coming year.
SEPs are a controversial but scientifically-validated method for reducing the spread of HIV/AIDS and other infectious diseases. Hepatitis C prevalence among injection drug users (IDUs) is extensive, approximately one-third for young IDUs (ages 18-30) and 70-90% for older IDUs.  As many as half of new HIV infections stem from shared drug injection equipment – either via direct exposure, sexual contact with an IDU, or in vitro transmission from mothers infected directly or through sexual contact with an IDU.  Needle reuse can also cause serious infections due to lack of sterility. Research indicates that needle sharing and reuse are due primarily to scarcity of clean needles from the perspective of IDUs. 
SEPs take in used needles from IDUs for safe disposal and provide clean, sterile needles in return. Collectively, more than 200 programs nationwide distribute over 30 million clean needles annually.  Many also provide other services, such as addiction treatment referrals, counseling, condom distribution, and disease screening and testing. SEPs improve individual health outcomes of participants by reducing their direct risk of harm from shared or reused needles. They also improve the public’s health by reducing the spread of infectious diseases and other harms. SEPs are supported by, among others, the American Medical Association, American Public Health Association, and American Society of Addiction Medicine. 
The renewed ban on federal funding for SEPs does not stem from some revelatory evidence that SEPs are ineffective, harmful, or costly. To the contrary, as part of comprehensive harm reduction efforts, SEPs may help reduce drug-associated risk behaviors by up to 80% and HIV transmission rates among IDUs by one-third.  Reduced transmission rates beget reduced treatment costs, which often come at public expense due to widespread lack of health insurance and reliance on government programs (e.g., Medicaid). Potential health care costs savings are significant. The cost per HIV infection prevented by an SEP is estimated to be $4,000-$12,000,  while HIV treatment costs may exceed $600,000. 
SEP critics principally claim that such programs encourage or condone drug use or other risky, immoral behaviors. Their argument misses the distinction between condoning behavior and simply acknowledging reality. Public health and harm reduction advocates do not approve or encourage injection drug abuse. National drug use is a major public health problem irrespective of moral judgments. Four decades into the “War on Drugs,” over 1.6 million Americans are arrested annually for drug abuse-related crimes.  Few believe the United States will ever eradicate illicit drug use. What can be accomplished, however, is reduction of the harm drug use has on communities and individuals.
At least thirty-four states and the District of Columbia have existing SEPs.  Additional programs may operate without promoting or calling attention to their work.  In some cases, states like Arizona have drug paraphernalia laws that do not exempt SEPs from criminal liability. Such laws could be used technically to prosecute SEP employees or volunteers. Moreover, absent cooperation and partnership with local law enforcement, IDUs en route to or from an SEP could be targeted for arrest for possession of paraphernalia, even if they are not carrying drugs at the time.
Some argue that IDUs’ problems stem from their illegal and risky behaviors, but many affected by drug use lack direct and personal accountability. For example, an IDU’s sexual partner may be unable to enforce condom use or may be unaware of his/her partner’s condition. Additionally, children infected in utero or who lose a parent to drug use-related infection can hardly be said to be responsible for their circumstances. While SEPs alone cannot prevent harm in all such cases, they can help by getting dirty needles off the streets and keeping some IDUs from becoming infected in the first instance.
Many SEPs rely solely on state, local, or private funding. However, some may rely indirectly on federal support (e.g., as a division of a larger department receiving federal funding). Rapid reductions in federal funding status creates uncertainly and confusion. Lack of funds and administrative difficulties in segregating funding streams may lead some organizations to forego establishing new SEPs or to close existing programs that may be the only local options for IDUs to legally obtain clean needles without a prescription or at no cost. Absence of these programs may foster high-risk reuse and sharing behaviors, resulting in increased infection rates across the population.
Risks associated with injection drug abuse continue to account for a significant portion of new HIV infections in the United States.  SEPs can help so long as they can operate legally and with adequate funding. Withdrawing or prohibiting public funds for these effective programs in contradiction of available scientific evidence is a lamentable policy that backtracks significant recent progress. There may be some room for optimism, as President Obama’s 2013 budget proposal does not include the federal funding ban,  but the road ahead for SEPs remains perilous.
About the Author: Daniel G. Orenstein, J.D., is currently a Fellow and Faculty Associate in the Public Health Law & Policy Program, Sandra Day O’Connor College of Law, Arizona State University, and Deputy Director of the Network for Public Health Law – Western Region.
 The opinions expressed are solely those of the author and do not necessarily represent the views of any organization or institution. The author acknowledges the kind editing assistance of Professor James G. Hodge, Jr., J.D., LL.M., Sandra Day O’Connor College of Law, Arizona State University.
 Consolidated Appropriations Act, 2012, Pub. L. No. 112-074.
 Sarah Barr, Needle-Exchange Programs Face New Federal Funding Ban, KAISER HEALTH NEWS (Dec. 21, 2011), http://www.kaiserhealthnews.org /Stories/2011/December/21/needle-exchange-federal-funding.aspx.
 Scott Burris, Peter Lurie, and Mitzi Ng, Harm Reduction in the Health Care System: The Legality of Prescribing and Dispensing Syringes to Drug Users, 11 HEALTH MATRIX 5, 5–6 (2001)
 Id. at 6–7, 11.
 INST. OF MED., PREVENTING HIV TRANSMISSION: THE ROLE OF STERILE NEEDLES AND BLEACH 307–12 (1995), available at http://www.nap.edu/ openbook.php? record_id=4975&page=307; American Medical Association, H-95958: Syringe and Needle Exchange Programs, available at https://ssl3.ama-assn.org/apps/ecomm/ PolicyFinderForm.pl? site=www.ama-assn.org&uri=%2fresources %2fdoc%2fPolicyFinder%2fpolicy files% 2fHnE%2fH- 95.958.HTM (last visited Jan. 3, 2012); Barr, supra note 4. See also Harm Reduction Coalition, Lifting the Federal Ban on Syringe Exchange Funding, http://www.harmreduction.org/downloads /HRC_SYRINGE.pdf (last visited 1/5/12) (listing numerous organizations expressing support for SEPs).
CTRS. FOR DISEASE CONTROL AND PREVENTION, SYRINGE EXCHANGE PROGRAMS – UNITED STATES, 2008, MORBIDITY AND MORTALITY WEEKLY REPORT (Nov. 19, 2010), 59 (45): 1488-1491, available at http://www.cdc.gov/mmwr /preview/mmwrhtml/mm5945a4.htm (citing National Institutes of Health, Consensus Development Statement. Interventions to prevent HIV risk behaviors, February 11-13, 1997:7-8); Institute of Medicine, Board on Global Health, Preventing HIV Infection among Injecting Drug Users in High-Risk Countries: An Assessment of the Evidence, Congressional Briefing (Sept. 14, 2006), available at http://www.nap.edu/catalog.php?record_id=11731. But cf. Norah Palmateer et al., “Evidence for the effectiveness of sterile injecting equipment provision in preventing hepatitis C and human immunodeficiency virus transmission among injecting drug users: a review of reviews”. Addiction 105 (5): 844–59, available at http://onlinelibrary.wiley.com/doi/10.1111 /j.1360-0443.2009.02888.x/full (reviewing several studies and concluding that the effect may not be as significant as previously suggested and that more studies are required).
 CTRS. FOR DISEASE CONTROL AND PREVENTION, SYRINGE EXCHANGE PROGRAMS – UNITED STATES, 2008, supra note 9 (citing Holtgrave DR, Pinkerton SD. Updates of cost of illness and quality of life estimates for use in economic evaluations of HIV prevention programs. Journal of Acquired Immune Deficiency Syndromes and Human Retrovirology 1997; 16:54-62.).
 HIV patients will spend $600K for lifetime care (Nov. 10, 2006), MSNBC.COM, http://www.msnbc.msn.com/id/15655257/ns/ health-aids/t/hiv-patients-will-spend-k-lifetime-care/#.Tv4l9NTLzh4. See also Burris et al., supra note 5 at 7(citing studies showing a cost of just over $34,000 per prevented infection to implement SEP funding, pharmacy sales, and syringe disposal covering all illicit drug injections).
 See, e.g., Cris Barrish, To Stop AIDS “Breeding Ground” Needle Exchange a Must, Many Say, NEWS J. (June 10, 2006), http://web.archive.org/web/20060902012926/ http://www.delawareonline.com/apps/pbcs.dll/article? AID=/20060610/NEWS/606100309 (reporting that, as of 2006, Delaware and New Jersey were the only states without an existing SEP).
 ARIZ. REV. STAT. ANN. § 13-3415 (2011).
 AIDS Action Committee of Massachusetts, “President Obama’s Fiscal 2013 Budget Demonstrates Commitment to Ending HIV/AIDS Epidemic in America,” Feb. 13, 2012, available at http://www.aac.org/media/releases/ president-obamas-fiscal-2013.html.