Last week, the Supreme Court (Court) heard oral arguments in companion cases Ruan v. United States and Kahn v. United States, concerning the application of the Controlled Substances Act (“CSA” or “the Act”) to medical practitioners. Through these cases, the Court is expected to resolve a circuit split over the role of “good faith” as a defense for medical practitioners charged with unlawfully distributing narcotics under Section 841(a) of the Act (see our previous article about the issues before the Court and the different approaches to good faith taken by the circuit courts). While arguments did not offer a clear view into the direction the Court is headed, three points of friction emerged that may inform the Court’s decision.

First, the Justices appeared to hold differing views on the statutory construction of the CSA. Specifically, their questions focused on whether grammatically “knowingly and intentionally” can modify “except as authorized by this subchapter” in Section 841(a). Justice Alito suggested that “knowingly and intentionally” are adverbs and therefore could “only modify a verb.” Justice Breyer had a different understanding of the scope of adverbs, citing his grade school English teacher Ms. Chichester “who told us an adverb could modify a verb, an adjective, or another adverb.” The Justices also disagreed over the importance of the “except as authorized” clause coming before “knowingly and intentionally” in the statute.

Second, the Justices offered variations of a speeding offense hypothetical to draw out the potential application of a subjective approach. Chief Justice Roberts began with an example of an individual pulled over for speeding in Montana and noted that the individual would be issued a ticket for going 70 mph in a 55 mph zone, even if the individual told the officer that he believed the speed limit should be higher because they were in the middle of Montana. The Chief then transitioned to the prescribing context and asked whether a practitioner should get a jury instruction that “I realize the standard is . . . this many prescriptions a month or a year, but I think it should be this [many prescriptions].” Counsel for petitioner Ruan conceded “you don’t get an instruction that says you can pick the rules you like” and countered that their proposed instruction “tells the jury focus on intent.” Later, Justices Kavanaugh and Barrett each offered variations on the speeding hypothetical to further illustrate how a subjective approach would be applied. Counsel for petitioners both focused, in part, on the severity of penalties applicable to practitioners under the CSA in contrasting the issue at bar with traditional regulatory offenses like speeding.

Third, Justice Thomas asked about the overlap between the DEA’s regulatory scheme and the existing framework for prosecuting physicians under the CSA. Specifically, Justice Thomas noted the lack of an “intermediate step,” like the revocation of a DEA registration prior to criminal prosecution, and expressed concern that the law currently seems to be doing “two things at the same time with some quite significant criminal penalties.” Counsel for the government responded by suggesting that the law does not require the revocation of a DEA registration to precede prosecution because such a requirement would provide doctors with “one free shot” to violate the law prior to prosecution.

The complexity of the statutory and regulatory landscape was evident from oral arguments, and the Justices did not tip their hand on how the Court may rule. We will continue to monitor developments and await a decision from the Court that will hopefully clarify the role of the criminal justice system in regulating the medical profession.

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