State Laws

2011

State laws designed to curb the abuse of morphine and cocaine came mostly in the last decade of the nineteenth century. The realization of “abuse” and its seriousness gradually undermined confidence in simple regulatory laws and led to a determination that decisive action must be taken. Addiction became a challenge to medical and legal institutions. State and municipal laws generally required cocaine or morphine to be ordered on a physician’s prescription, which then had to be retained for perhaps a year for inspection. The laws had one great loophole: the patent medicine manufacturers repeatedly obtained exemptions for certain quantities of narcotics in proprietary medicines. These loopholes permitted the narcotized patent medicines to be sold, but the laws lulled the public into believing that this abuse of narcotics was under control. To some extent these lacunary antinarcotic laws did alert the more wary, and manufacturers began to be cautious. But as curbs on the sale of narcotics for nonmedicinal use, the laws were not effective; they were not well enforced because, among other factors, the states did not have sufficient manpower to maintain surveillance.

Although a state might enact an antinarcotic law and even enforce it, bordering states without such laws often provided drugs for users and sellers. New York State reformers bitterly criticized New Jersey’s lax narcotic regulations, which vitiated enforcement of New York’s carefully framed legislation.22 Furthermore, although the law-abiding physician had more paper work, unethical physicians could circumvent state and local laws and the consequent paper work in various ways. The “dope doctors” could simply purchase drugs by mail from another state and then dispense them to their “patients,” thereby bypassing laws which relied on prescriptions and pharmacies to monitor drug use. Generally, physicians resented the legal advantage of patent medicines which, by means of statutory exemptions, contained narcotic dosages capable of producing addiction. These evasions were in painful contradiction to the intent of legislation and a distinct reminder of the political influence of those profiting from narcotic sales.

Federal control over narcotic use and the prescription practices of the medical profession were thought in 1900 to be unconstitutional. Gradually, federal commerce and tax powers were broadened by Supreme Court decisions, notably those upholding a federal tax on colored oleomargarine, federal prohibition against transportation of women across state lines for immoral purposes, the interstate transportation of lottery tickets, and carrying liquor into a state that prohibited liquor imports. But that congressional activity was still circumscribed by the Constitution was reflected in the Supreme Court ruling in Hammer v. Dagenhart (1918) wherein the court declared that congress could not regulate the interstate shipment of goods produced by child labor.28 The ruling clearly indicated that federal police powers under the guise of tax or interstate commerce powers had narrow application.

As a result of constitutional uncertainty over legislation enabling federal law to prevail in an area of morals, there was little effort until after 1900 to enact a federal law to control the sale and prescription of narcotics. After the passage of the Pure Food and Drug Act (1906), some elements of the pharmacy trade supported a regulatory antinarcotic law based on the interstate commerce clause, a movement seconded by Dr. Harvey Wiley of the Agriculture Department.24 Finally, by 1912, when the State Department’s campaign for a federal antinarcotic law was making substantial progress, proponents opted for basing it on government’s revenue powers. Thus the framing of an antinarcotic law paralleled the widening possibilities open to Congress in the area of policing morals. Even so, the Harrison Act of 1914 had to survive a number of unfavorable or close court decisions until its broad police powers were upheld in 1919. And as late as 1937 the Marihuana Tax Act was carefully kept separate from the Harrison Act in order to discourage more court attacks.25 The Drug Abuse Act of 1970 scrapped the Harrison Act’s foundation on revenue powers and rests on the interstate commerce powers of Congress, returning to the basis proposed more than sixty years before. In the last half century, the interstate commerce clause has been substantially broadened so that its powers can sustain strict regulation of drug use without the need to portray a police function as a revenue measure.26

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