The Fourth Amendment and Random Drug Testing of People With Chronic Pain

Abstract

It is common for physicians who prescribe opioids for chronic pain to drug test their patients. This practice may soon be mandated by the State of Washington as a result of passage of their new law ESHB 2876. Random drug testing of people simply because they seek treatment for chronic pain arguably constitutes a suspicionless and warrantless search that violates both the Fourth and Fourteenth Amendments. Issues discussed include consent, circumstantial coercion, and "special needs" searches.

Drug Testing Challenged

“…The ACLU of Indiana recently filed a lawsuit to stop the use of treatment agreements and drug testing for people with chronic pain in the clinic. 6 State-mandated drug testing implicates the Fourth Amendment of the Federal Constitution, which protects citizens against unreasonable searches and seizures by the government. I have called treatment agreements "unconscionable adhesion contracts," or contracts that are unfair, one-sided and likely unenforceable.…”

“…2 Drug testing is definitely a constitutional issue and has been from the start. 6 Those employed at state or federally funded educational institutions are considered "government actors" or agents of the state. 3 Analyses of agreements found that the vast majority contained a stipulation requiring patients to submit to drug screens.…”