More than a dozen states, from deep-red Alabama to progressive Colorado, passed laws in the last four years decriminalizing Fentanyl test strips — a rapid revision of decades-old drug laws as policymakers seek to respond to a ravaging epidemic.
Next up is Texas, where a measure that failed in past years is set to be reintroduced with exponentially better odds after Gov. Greg Abbott (R) dropped his opposition last month.
Abbott’s change of heart reflects a broader shift among policymakers, as they scrap some punitive drug laws first adopted during the Nixon administration in favor of measures meant to minimize harm to drug users.
“Fentanyl has become a bipartisan issue,” said Katharine Neill Harris, a drug policy fellow at Rice University’s Baker Institute for Public Policy. “There might be disagreements about the steps to take to address it. But the scale of the epidemic has forced everyone to say, ‘OK, we need to do something.’”
Public health experts, and some on the left, have long held that the war-on-drugs approach to dealing with drug addiction — which prioritizes prohibition, criminalization and punishment — doesn’t work. Instead, they advise so-called harm reduction, which treats it as a disease and elevates responses that guide users toward treatment.
Such thinking has become more widespread in recent years — it is a pillar of the Biden administration’s drug policy — as the introduction of synthetically produced opiates in the drug supply has sent death rates skyrocketing. Advocates say interventions such as handing out test strips and syringes can reduce drug deaths and serve as a first link between drug users and groups that can help them.
Still, policymakers across the political spectrum remain deeply divided about how far they should go, with lingering fears about condoning and enabling abuse.
On the right, tough-on-drugs conservatives have relaxed opposition to what they are calling common-sense measures, including test strip distribution and increased access to medication that can reverse overdoses and ease withdrawal. But some conservatives are walking back support for needle exchange policies popularized during the AIDS epidemic.
On the left, California Gov. Gavin Newsom (D), a possible presidential contender, vetoed a bill in August that would have authorized pilot supervised injection sites in San Francisco, Los Angeles and Oakland. On Tuesday, he unveiled a budget proposal that included $4 million in new money to make test strips more available and $97 million more for fighting opioids and fentanyl.
Colorado Gov. Jared Polis (D) in 2021 signed a bipartisan bill that restored some criminal charges for fentanyl possession that were downgraded in a sweeping drug law passed two years earlier, while also providing more money for test strips, Naloxone distribution and other harm reduction services.
Colorado Sen. Kyle Mullica (D), a former state representative and working ER nurse, said successful legislation needs to include penalties for people who break the law as well as ensure addiction treatment for those who need it. “That’s kind of the nature of this job, is figuring out how do you thread that needle,” Mullica said.
Fentanyl test strips, which can detect traces of Fentanyl in drug samples, were criminalized under drug paraphernalia laws that were passed in the late 1970s and 1980s and remained largely untouched for three decades. That was during the height of the crack cocaine epidemic, when test strips were largely used by manufacturers and dealers who wanted to know the purity of the drugs they were selling.
But the scale of the opioid epidemic has posed new challenges for lawmakers, as traffickers have increasingly laced fentanyl and other synthetic opioids — which are cheaper to produce and easier to smuggle into the country than heroin — into other drugs. Nationally, drug deaths involving fentanyl and other synthetic opioids have increased dramatically every year since 2012.
Test strips can help prevent drug users from unknowingly ingesting lethal doses of Fentanyl. A fact sheet developed by the California department of public health — which has been adapted in other states that have legalized test strips — cites studies in California, North Carolina and Rhode Island that found that people who had access to test strips generally used them and were more likely to change their behavior to reduce overdose risk.
Community service providers aware of such research have started handing out test strips even in states where they are illegal, sometimes with buy-in from local law enforcement officials, Harris said. But they can’t access federal money going to the overdose crisis as long as the strips are banned by state law.
Harris, of Rice University, said most lawmakers were likely unaware that test strips were illegal before the rise in Fentanyl deaths brought the issue to the forefront.
Fentanyl test strips are now legal in at least 25 states and Washington, D.C., including some where they were never criminalized, according to an April report by the Legislative Analysis and Public Policy Association. Most of the amendments legalizing test strips were passed after 2018.
Abbott’s office referenced Texas’ rising death rates in December when he announced that he would push the Republican-controlled legislature to legalize test strips.
“There’s going to be a movement across the state to make sure we do everything that we can to protect people from dying from Fentanyl, and I think test strips will be one of those ways,” Abbott said.
Harris said Abbott’s support was a “really big deal.”
“The state of Texas is controlled by Republicans, and if the governor says that he doesn’t like something or that he is going to veto something, that is going to really dampen support,” she said. “Legislators aren’t going to want to waste their time on a bill they know isn’t going to pass.”
The Texas House Public Health Committee issued a report in November recommending that the legislature legalize test strips and pass measures that would increase access to opioid treatment and overdose reversal medications and make it easier to track overdose deaths. Texas statute classifies possession of any drug paraphernalia, including testing strips, as a misdemeanor punishable by a $500 fine.
Texas Rep. Stephanie Klick, (R) a nurse practitioner who chairs the committee, told Pluribus News that the test strips are one “possible strategy” to address a “huge” problem, but she is not convinced they will work.
“The question I have is whether users will actually use the test strips, No. 1,” she said. “If a specimen does test positive, are they going to reduce the amount that they ingest? Are they not going to ingest it?” She also noted that the test strips currently available cannot detect other harmful drugs, like the veterinary tranquilizer xylazine, which has started to infiltrate the drug supply.
Bills that would have allowed test strips failed in 2022 in almost a dozen states. In Florida, the House voted against a measure that would have legalized test strips in the closing hours of the 2022 session. The Kansas Senate removed a provision that would have legalized them from another bill it passed in May. Senate Republicans there argued that they would give a green light to drug abusers.
“Fentanyl strips don’t save lives,” Kansas Sen. Molly Baumgardner (R) said, according to the Kansas Reflector. “Let’s be clear. There are individuals that want fentanyl in the drug that they’ve purchased or acquired.”
In Texas, Abbott wants to couple decriminalization of test strips with a law that would classify deaths caused by fentanyl overdose as poisonings, which would allow for stiffer penalties — potentially including murder charges — for those who knowingly sell drugs laced with fentanyl.
Similar measures gained popularity as the opioid epidemic spread. But prosecutors on the left and some public health experts argue that prosecuting drug-induced homicides backfires by criminalizing friends and families of the victim who are present during overdoses, deterring 911 calls, and eroding the efficacy of so-called good samaritan laws, while not resulting in a measurable reduction in overdose deaths.
Klick, of the Texas public health committee, said she is not comfortable with other harm reduction measures, such as syringe exchanges, because she has not seen “clear-cut” data that they work. Safe injection sites, she added, are “not likely” to be approved in Texas. “What they are doing at safe injection sites is encouraging them to continue with their addiction.” she said. “They need treatment.”
The use or possession of needles and syringes is legal for at least some individuals in at least 39 states and Washington, D.C., according to the Legislative Analysis and Public Policy Association. But new opposition forced a number of needle exchange services to close in Republican-controlled communities in 2021. And some public health experts worry that fatigue over the drug crisis and skepticism of public health recommendations during the COVID pandemic could be fueling a broader backlash to harm reduction measures on the right.
Jennifer Sharpe Potter, a vice president and professor of psychiatry and behavior sciences at UT Health San Antonio, told lawmakers at the public health committee hearings this year that test strips are a commonsense measure, but that addressing the epidemic will take a more coordinated approach. That includes providing broader access to health care (Texas is one of 11 states that hasn’t adopted Medicaid expansion) and instituting other harm reduction measures.
“A preponderance of evidence and best practice would suggest these things don’t perpetuate drug use,” Potter said. “This drug use would continue, whether we had these or not, and the intent is to, to prevent some of the adverse sequelae of drug use and keep people alive, because every life is valuable.”
Sophie Quinton contributed to this report