WASHINGTON — Against the backdrop of a national crisis of soaring opioid overdoses and deaths, the Supreme Court on Tuesday considered the cases of two doctors accused of operating pill mills, with the justices struggling to articulate a legal standard that would separate unconventional medical practices from drug dealing.
They parsed the language of the Controlled Substances Act, recalling lessons learned from childhood grammar teachers. They tried out analogies, including whether there is ever a good-faith exception to exceeding the speed limit. And they worried about sending doctors to prison for decades over disputes about whether they had violated ill-defined medical norms.
The doctors in the two cases were convicted of unlawful drug distribution. One, Dr. Xiulu Ruan, was accused of running a clinic in Alabama with a business partner that issued nearly 300,000 prescriptions for controlled substances in a little more than four years, making it one of the nation’s leading sources of prescriptions for some kinds of fentanyl drugs.
The other, Dr. Shakeel Kahn, was accused of writing prescriptions in Arizona and Wyoming in exchange for payments that roughly tracked the street prices of the drugs. Prosecutors said he had accepted payment in cash and personal property, including firearms.
The question for the justices was how to read a phrase in a regulation under the Controlled Substances Act. The phrase set out an exception to the law’s prohibition and penalties, for prescriptions that were “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.”
Eric J. Feigin, a lawyer for the federal government, said that exception described an objective standard rooted in established medical norms, one that the two doctors had ignored.
“They 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,” he said.
Lawyers for the doctors said the right standard was a subjective one, focused on whether they had acted in good faith even if their conduct was at odds with generally accepted medical practices.
“The problem is that medical standards evolve,” said Lawrence S. Robbins, a lawyer for Dr. Ruan. “It’s a constantly evolving matter. And that deference to patients and their illness and their doctors requires a subjective standard.”
Beau B. Brindley, a lawyer for Dr. Kahn, warned of a “terrible chilling effect” that would result from turning the Drug Enforcement Administration into “a de facto national medical board.”
Chief Justice John G. Roberts Jr. said that subjective understandings did not generally create a defense to criminal charges.
A motorist stopped for driving 70 miles per hour when the speed limit was 55 may have believed the limit was 70. “You still get the ticket, right?” Chief Justice Roberts asked.
Mr. Robbins said that different rules applied for serious criminal charges.
“You don’t get to defend the traffic violation based on your state of mind,” he said, adding that more was required “when you’re talking about sending doctors, or anybody for that matter, to jail for mandatory minimums of decades in prison.”
Justice Amy Coney Barrett proposed what she suggested was a closer analogy. Suppose, she said, that a criminal statute provides, “Except as authorized by law, you must drive under 55 miles per hour.”
Motorists driving much faster to bring an injured child to an emergency room, she said, might incorrectly but in good faith understand the exception to apply to them.
Justice Brett M. Kavanaugh agreed. “If the statute says ‘except as authorized’ and you sincerely believe you’re authorized to drive 100 to get your child to the hospital, you should be acquitted, right?” he asked.
Justice Kavanaugh then turned to the cases before the court, Ruan v. United States, No. 20-1410, and Kahn v. United States, No. 21-5261.
“The doctor may have violated that objective standard but might have legitimately thought that the standard was somewhat different and, therefore, in those circumstances should not be sent away for 20 years to prison, right?” he asked.
Justice Samuel A. Alito Jr., drawing on what he had learned from “my old English teacher,” said the placement of the phrase “knowingly and intentionally” in the statute, after the exception on which the doctors relied, meant it did not apply to the exception, undercutting the doctors’ argument that subjective good faith matters.
The grammatical flaws in the doctors’ arguments did not stop there, Justice Alito said. “The problem is what an adverb can modify,” he said. “It can only modify a verb.”
Justice Stephen G. Breyer disagreed, recalling his own school days.
“I had a different English teacher, Ms. Chichester,” he said, “who told us an adverb could modify a verb, an adjective or another adverb.” (Most authorities would agree that Justice Breyer is exactly right.)
Sounding a little rueful, Chief Justice Roberts said, “I can’t remember my grammar teacher’s name.”