A History of The Ban on Federal Funding for Syringe Exchange Programs

Matt Fisher
Research Assistant, Global Health Policy Center

President Obama recently signed the FY2012 omnibus spending bill that, among other things, reinstated the ban on the use of federal funds for needle and syringe exchange programs (NSEPs); this step reversed the 111th Congress’ 2009 decision to allow federal funds to be used for these programs.

At the time, public health groups applauded the 2009 decision as “historic” because it reversed a multi-decade restriction on the use of federal funds to provide an intervention known to be effective in preventing HIV transmission: scientific evidence had thus temporarily overcome ideological opposition. Predictably, health advocates have criticized the 112th Congress’ decision to re-impose the ban:

– Zoe Hudson, of Open Society Foundations, contended that “the reinstatement of the funding ban deals a lethal blow to HIV programs that are proven to work;”

– Chris Collins, of the Foundation for AIDS Research, characterized the decision as “an anti-science, anti-public health action that undermines our country’s efforts to fight AIDS at home and abroad;” 

– Meredith Mazzotta and Christine Lubinski, of the Center for Global Health Policy, argued that the decision to could “pose a serious threat to HIV prevention programs in regions where injection drug use is fueling the spread of HIV, such as Eastern Europe, Central Asia and now certain parts of Eastern Africa.”

    In light of the history of the debate over NSEPs, public health advocates should not have been surprised by the most recent decision.

    The Terms of the Debate

    Historically, opponents of federal support for NSEPs have argued that funding NSEPs would signal governmental acceptance of illegal drug use, contradicting law enforcement efforts; send the message to children that drug use is acceptable; and worsen public health and safety by facilitating injection-drug use.

    Proponents of NSEPs argue that the programs provide myriad public health benefits, including reducing the spread of blood-borne infectious diseases among injection-drug users, an at-risk population that is uniquely vulnerable to becoming infected with, and spreading, HIV. A wealth of scientific evidence – including a WHO-led review – supports this perspective. Proponents also argue that NSEPs have the potential to reduce rates of illegal drug use and criminal behaviors by providing a point of contact to refer users to treatment programs; decrease the likelihood that law enforcement officers, first responders, and firefighters are accidentally stuck by an HIV-contaminated needle; reduce the number of improperly discarded syringes; and are cost-effective.

    The History of the Federal Ban  

    In 1988, led by Senator Jesse Helms (R-NC), Congress enacted a prohibition on the use of federal funds for NSEPs through section 300ee-5 of the Public Health and Welfare Act. Subsequent legislation, including the Ryan White CARE Act, renewed the ban with little modification. Lawmakers from both parties and officials from the Reagan and George H.W. Bush administrations – opponents of NSEPs – advanced arguments that were not based upon any scientific reviews of NSEPs. However, the text of the Public Health and Welfare Act indicated that the prohibition could be lifted in the future, if the Surgeon General determined that the programs were effective.  

    In the early-to-mid 1990s, scientific evidence began to emerge regarding the value of NSEPs for preventing ultimately fatal HIV infections. A panel convened by the U.S Institute of Medicine in 1995 ultimately recommended that the U.S. government lift its ban; finding that NSEPs were effective at reducing rates of HIV infection, while not contributing to an increase in drug use. A 1995 review of NSEPs by the Centers for Disease Control and Prevention (CDC) reached a similar conclusion. Despite these scientific reviews, Congress did not lift the restriction.  

    During the Clinton administration, Congress passed Public Law 105-78; it allowed Congress to fund NSEPs, if the Secretary of Health and Human Services endorsed the scientific evidence backing the programs. In 1997, Secretary of Health and Human Services Shalala did exactly this. However, despite Sec. Shalala having satisfied the condition of PL 105-78 for lifting the ban, the Clinton administration did not push to repeal it. Instead, President Clinton bowed to pressure from members of Congress and his administration’s Director of National Drug Control Policy, Gen. Barry McCaffrey, to maintain the prohibition (Both Democrats and Republicans in Congress expressed opposition to federal funding of NSEPs. That said, many Democrats were pressured by Republicans to oppose NSEPs so as to avoid looking like they supported drug use.).  

    The prohibition remained in place during the George W. Bush administration. In addition, an internal decision was made within Bush’s flagship global health initiative – the President’s Emergency Plan for AIDS Relief (PEPFAR) – to abide by the ban.

    Candidate Obama promised to remove the restriction on federal funds for NSEPs while campaigning for the presidency, but he included language contrary to this in his first budget request to Congress. The new administration’s reluctance to invest its political capital early in the Presidency likely resulted from the perception that entrenched interests in Congress favored maintaining the funding restriction.  

    In 2009, Congress lifted the prohibition on federal funding for NSEPs in the FY2010 Consolidated Appropriations Act by removing language in President Obama’s budget proposal that endorsed the funding restriction. Soon after, in July, 2010, the Department of Health and Human Services issued implementation guidelines for programs interested in using federal dollars for NSEPs; PEPFAR also endorsed NSEPs.  

    In the recent budget deliberations of the 112th Congress, House Republicans proposed bans on the use of federal funds for domestic NSEPs in the Labor-HHS spending bill and the use of State Department funds, specifically, for NSEPs in international programs. Senate Democrats and President Obama ultimately conceded to these GOP proposals, unwilling to delay or derail the budget negotiations.

      The Debate Continues

      In the 112th Congress, opponents of federal funding for NSEPs have prevailed, thus far; funding for a critical scientifically-proven public health intervention was banned in order to compromise on a budget bill. The willingness of Senate Democrats and the White House to accede to GOP demands suggests that they perceived that support for NSEPs could not overcome the intense ideological opposition to these programs and that the political benefit of advancing this cause was not worth the political cost of arresting the budget negotiations.

      While the existing body of scientific literature is clear on the value of NSEPs as a lifesaving public health intervention, it remains insufficient to conclusively persuade Congress of the merits of funding them – ideological and moral opposition remains. Given the turbulent history of NSEPs, the issue of federal funding will continue to be actively debated.

      Note: While the legislation bans federal funding for NSEPs, it does not ban NSEPs; funding is allowed to come from non-federal sources.