Justices Probe Proof Burden in ‘Pill Mill’ Prosecutions (1)

Lawyers for doctors accused of operating like drug dealers sparred with the Justice Department at the Supreme Court in a case that could affect medical practice nationwide.

Hearing argument Tuesday against the backdrop of the opioid crisis, the high court sought to settle what burden of proof the government has when it seeks to lock doctors up for prescribing controlled substances.

Justices questioned whether the government’s burden is high enough in cases where defendants face stiff prison terms while also probing how far courts should go to entertain doctors’ idiosyncratic practices and beliefs.

However the court rules in its decision, expected by July, could clarify the law either way.

The appeal involves two separate cases prosecuted under the federal Controlled Substances Act. Registered professionals are exempt if they prescribe drugs for legitimate medical purposes in the usual course of practice.

The issue is what the government has to prove when it comes to criminal intent. Defendants want to argue they subjectively believed they were prescribing in good faith. The Justice Department says it should be an objective standard, not up to each doctor’s whim.

Chief Justice John Roberts raised the hypothetical of a person pulled over for speeding who thought the speed limit was different, or disagreed with it.

“Well, how is that different if, instead of speed limit, we’re talking about what is understood, accepted to be a—in the course of medical practice and whatever the other thing was—in course of professional treatment or normal medical practice?” Roberts asked.

Arguing for one of the doctors, Xiulu Ruan, Lawrence Robbins said he wasn’t asking for a “choose your own medicine” rule, but he said the jury should focus on intent.

Robbins further suggested the chief’s analogy was inapt. “You don’t get to defend the traffic violation based on your state of mind,” he said. “But, when you’re talking about sending doctors or anybody for that matter to jail for mandatory minimums of decades in prison, this is not a regulatory offense.”

Representing the other doctor, Shakeel Kahn, Beau Brindley raised the concern that “the DEA becomes a de facto national medical board that’s never been authorized.”

U.S. deputy solicitor general Eric Feigin said the doctors “want to be free of any obligation even to undertake any minimal effort to act like doctors when they prescribe dangerous, highly addictive, and, in one case, lethal dosages of drugs to trusting and vulnerable patients.”

Some justices sounded more concerned with the government’s obligation.

“And so are you saying that the—that there has to be some form of mens rea here that the government has to prove? Yes or no?” Justice Neil Gorsuch asked Feigin. “Mens rea” is the Latin term used to refer to a guilty mind.

Feigin said yes, but his explanation of why didn’t satisfy the justice. Citing earlier precedent, the government lawyer said the appropriate mens rea “is an objective honest effort standard under which the defendant has to show some—"

“Objective honest efforts is like a—a contradiction in terms, Mr. Feigin,” Gorsuch interrupted.

Ruan was convicted in Alabama and sentenced to 21 years for running what the government called a “massive pill mill” with a co-defendant in Mobile. Kahn was convicted in Wyoming and sentenced to 25 years for running an enterprise with his brother that the government said targeted addicts and resulted in a patient’s death.

Kahn, 55, is held at a low-security facility in San Pedro, Calif., with a 2038 release date, according to the Bureau of Prisons inmate locator. Ruan, 59, likewise held at a low-security facility, in Oakdale, La., has a 2035 release date.

The case is Ruan v. United States, Kahn v. United States, U.S., Nos. 20-1410, 21-5261, 3/1/22.