Passage Of The Harrison Act

2011

The presidency of Woodrow Wilson began in March 1913, with Democrats now in control of both Houses. Initially Wright was delighted with this change. Wilson and Secretary of State William Jennings Bryan supported strict regulation of narcotics and seemed to have nothing but admiration for America’s initiative in international control. Wright gave a glowing report of his first meetings with Bryan. According to Wright, his account of the fight for worldwide narcotic control was repeatedly punctuated by Bryan’s amazed exclamation: “How did you manage it?”16

A joint committee set up by the State and Treasury Departments attempted to write a bill acceptable to the drug trades, the medical profession, and the Internal Revenue Bureau, which would have enforcement responsibility. Wright felt he was close to the end of a three-year fight with trade interests. At last, on 10 June 1913, the chairman of the National Drug Trade Conference signed a draft of the bill, which was then introduced into the first session of the 63rd Congress by Harrison as HR 6282, destined for eventual passage as the Harrison Act.17

The descendant of the stricter Foster bill, the Harrison bill of 1913 had incorporated numerous compromises. Records were simplified; standard order blanks would be filled in by any purchaser of narcotics and kept for two years so that the revenue agents could inspect them at will. Copies of the orders were to be kept by district internal revenue offices on permanent file. Physicians could dispense drugs without keeping records if in actual attendance on their patients. Numerous patent medicines containing no more than the permitted amounts of morphine, cocaine, opium, and heroin could continue to be sold by mail order and in general stores. Everyone dealing in narcotics except the consumer would have to be registered. Retail dealers or practicing physicians could obtain a tax stamp for one dollar a year. No bond was required, the drugs were not taxed by weight, and chloral hydrate and cannabis were omitted in the final version.

The Harrison subcommittee of the House Ways and Means Committee assured the full committee that the bill now had approval of both the medical and trade interests. On 26 June 1913, only sixteen days after the NDTC had accepted the draft, the House passed HR 6282 with only minor changes in the phraseology.18 When the bill went to the Senate, however, progress slowed, for efforts to give special interests an advantage started over again. Not until 18 February 1914 did the bill come out of the Senate Finance Committee. One change by this committee particularly aroused the anger of the American Pharmaceutical Association: physicians were to be permitted to provide narcotics when they “shall have been specifically employed to prescribe for the patient receiving such drug or article.” 19 This change permitted anyone to apply by mail for a drug from a physician. The amendment was inserted, the Journal of the American Pharmaceutical Association believed, to accommodate a physician-owned business that sold asthma cures by mail after having the patient fill out a form describing his illness and asking for treatment.20 Other amendments of an unpalatable nature to one group or another were now being offered. One proposed amendment to the committee version simply exempted physicians and their aides from the provisions of the Act.21 The response to this change can be well imagined. Dr. Woodward thought it possible that these amendments were intended not to revise but to defeat the bill arduously worked out the previous summer.

On 15 August 1914 the Senate passed HR 6282 but with amendments unsatisfactory to the House Conference Committee. Professional and trade organizations put pressure on the House and Senate Conference Committee to achieve a workable compromise. These efforts in the autumn of 1914 by the NDTC, the medical profession, Wright, and the administration were successful; in October agreement was reached.22

The Senate had increased the heroin exempted in one ounce of proprietary medicine from 1/12 grain, which the NDTC and the House had approved, to 1/8 grain, but this was reduced to 1/4 grain in the compromise. The reduction was opposed by some makers of proprietary medicines, but their opposition was not fatal. A few minor changes were made, such as lessening the effect of the bill’s impact on our insular possessions, which already had stringent laws and were not part of the internal revenue system of the United States. Final action was delayed until the December 1914 session of the 63rd Congress, when the Conference Report was accepted without opposition.

On 14 December the bill passed and was signed by the President on the 17th. Finally the American government had redeemed its international pledges; a federal law brought some control to the traffic in opiates and cocaine. The practical significance of the Harrison Act, however, was still debated among the groups affected. There was no general agreement on what would be the desirable or actual enforcement of the law.

Wright had been gravely concerned by the impasse that had threatened the Harrison bill, but he had been removed from his prominent position in the State Department for the second time in June 1914. During the Democratic administration, antagonism to Wright had been a significant cause — at least in Secretary Bryan’s view — of repeated refusals by the Appropriations Committee of the department’s request for funds to participate in the Second Hague Conference.23 After House passage of HR 6282, Wright had asked for a ministerial appointment, anywhere, on the basis of his good work on the opium matter. He was refused, allegedly because both the Secretary and the President had more Democratic applicants than they could satisfy.24 Wright’s influence had declined since 1911, and he found himself increasingly isolated from congressional and trade leaders.

In early 1914 some Democratic members of the House Appropriations Committee criticized Wright’s proposed appointment to the Third Hague Conference. Secretary Bryan, increasingly uncertain about Wright’s value and having occasionally detected liquor on Wright’s breath, called him and demanded that he take the pledge of abstinence, at least for the duration of the Hague Conference. Humiliated, Wright refused and was thereupon dismissed from the State Department and from the Hague delegation.25

In the autumn of 1914, while the nation followed reports from a disintegrating Europe, Wright was totally absorbed in his private political career. Desperately he had sought support from medical authorities and the drug trade to influence the Conference Committee to reconsider the House and Senate versions of the Harrison bill, to include nothing unsatisfactory to any of the interested parties. He also wrote and telegraphed the President. After the antinarcotic bill passed, he began searching for “some large task” to take up. His correspondence is a pathetic series of rejections from prominent individuals and institutions.28 Although having denied that he was an office-seeker or wanted any personal connection with the new legislation, Wright asked the Treasury Department in January 1915 whether he might be needed for three months or so to get the whole apparatus set up and coordinated, or perhaps to write the regulations enforcing the Act. The Treasury, however, did not need him.27 He maintained an interest in the Harrison Act, but after 1914 his antinarcotic activities diminished. He still cultivated Theodore Roosevelt as well as regular Republican politicians, but nothing came of his efforts. Casting about for activity, he went to France in 1915 to help the Allied cause. While there he was injured in an automobile accident from which he never fully recovered. Wright died in Washington, D.C., in January 1917 at the age of 49.

Wright had recognized defects in the law. He especially regretted Section 6, which permitted exempt narcotic preparations, but he agreed with Representative Harrison that without such a provision the proprietary interests would have scuttled the bill.28 He also regretted that the provisions for record keeping were less strict than originally proposed, but here he accepted the opinion of Representative Mann, who believed more strenuous requirements would result in the retail druggists’ blocking the law.

Wright believed he had a powerful remedy for these defects. Since the statute was the outcome of an international agreement, he assumed it could employ police powers within a state in addition to the traditional powers associated with a federal revenue measure. This would give great importance to the words “prescribed in good faith,” enabling the federal government to argue, as it did, that this phrase prevented addiction maintenance. Without some legal sanction for federal police powers in the states, the Act would be limited to record keeping. Wright based his optimistic expectation on the principle that a treaty to which the United States had become a signatory and which had been ratified by the Senate, would take precedence over state law. On this reasoning, if the Act did employ police powers within a state, such extension of federal activity would not be unconstitutional because the Act carried out a treaty, the Hague Convention. This issue was later considered by the Supreme Court in the case of Jin Fuey Moy (1916). Wright’s view was not sustained, the court majority holding with Justice Holmes that the specific form of the Harrison Act was not required by the Hague Convention. Charles Evans Hughes and Mahlon Pitney dissented, prompting Wright to express his appreciation and to assert that he had had Hughes’ own teachings on the subject in mind when the law was drafted.29

The Federal Position

A position similar to Wright’s on the extension of federal police powers was uneasily anticipated by Frank Freericks, although not on grounds of treaty-making powers of the federal government. The prominent lawyer-pharmacist maintained in the Journal of the American Pharmaceutical Association that the Harrison Act did involve police powers and would attempt to regulate the selling and mode of selling of narcotics to consumers. Freericks strongly disagreed with those who maintained that the Act was merely an information-gathering device that relegated the policing of drug traffic to the states. Those who had proposed it, he maintained, understood that the states were not successfully curbing the abuse of drugs and that the Act’s purpose was to accomplish by federal powers what the states were unwilling or unable to do.30

Strong objection to Freerick’s view was expressed by the Journals editor James H. Beal, one of the key NDTC negotiators with the federal government.31 Also a lawyer and pharmacist, he disputed Freericks on the crucial question of police powers in the Harrison Act. In Beal’s opinion there were no police powers whatsoever. If police powers were implied in the Act, or if anyone tried to develop such powers under its authority, the Act would be quickly declared unconstitutional. Beal had only loathing for any “physician [who] has so far lost his sense of professional responsibility as to be willing to sell habit-forming drugs to habitues.” But the sole purpose of the Act was to gather information, which could then be conveyed to the state and local authorities. The states would continue to regulate the relationship between professionals and their clients. If the states failed in this task, then the Harrison law would be a failure: it could in no way remedy the states’ inability to enforce, or refusal to enact, drug-abuse laws. Freericks had argued that should the Act lack police powers to regulate the physician’s prescription of narcotics to his patients, then the law would merely transfer widespread selling of narcotics into a profitable monopoly for unscrupulous physicians. Beal answered that the phrase “in the pursuit of his professional practice only” would enable conviction of any unscrupulous physicians who simply sold drugs and prescriptions to satisfy the cravings of addicts.32

The Public Health Service shared Beal’s view of HR 6282. In a revealing letter to a woman who had taken morphine for many years and now complained that her supply would be cut off because of the Harrison Act, the Surgeon General replied in March 1915 that the Act was intended simply to gather information, and she could continue to receive morphine from her physician.33

The Bureau of Internal Revenue, on the other hand, took a somewhat more stringent view. It prepared to bring actions against druggists and physicians as well as addicts who were violating the bureau’s understanding of the Harrison Act’s moral principle — that taking narcotics for other than medicinal purposes was harmful and should be prevented.34

The American Medical Association (AMA), in the person of Dr. Simmons, opposed the selling of narcotics to users without medical reasons. Whether or not the majority of physicians agreed that the habit was harmful is uncertain. But economics was only one factor complicating the physician’s relationship to narcotics. The number of physician-addicts was high. Medicine was (and is) the leading profession in rate of addiction, about 2 percent according to Wright’s survey. The profession was commonly believed to be one of the causes of most of the other addicts in the nation, and evidence, nowhere contradicted before Congress, revealed that physicians were the principal offenders.35 Perhaps the attitude of the public was not unreasonable, for a small percentage of physicians could maintain a considerable number of addicts if no restrictions were placed on their prescription powers. In contrast to such high-minded spokesmen for the AMA as Drs. Lambert and Simmons, a minority of physicians made substantial profits by prescribing narcotics to addicts and intended to continue this practice until forced to stop. Others devoted only a small portion of their practice to addicts. Although some physicians continued to feel no discomfort in maintaining habitues, medical experts as well as laymen commonly believed that addiction promoted criminal appetites and inclination, ruined the reproductive organs, and caused insanity.

Some of the public believed the Harrison Act prohibited simple maintenance, and, in fact, the Internal Revenue agents would begin enforcement on the premise that maintenance violated “good faith” in the practice of medicine. Detailed records would now be available to indicate the number of prescriptions and the amount of narcotics sold by doctors. If the “nonmedical” consumption of narcotics did not decrease substantially, the licensed professional was an obvious and relatively easy target for legal action.

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