I have practiced neurology for more than fifty years. I have treated patients with refractory neuropathic pain, central pain syndromes, spinal cord injuries, and the cruel mix of conditions that fall under no clean diagnostic label. I have watched patients who were finally stable, finally sleeping, finally functioning, lose their prescriptions not because their physicians did anything wrong, but because the government decided that looking different on paper is the same as dealing drugs.

That is not hyperbole. It is the logical endpoint of a policy drift that has quietly transformed federal drug enforcement into de facto medical regulation.

How we got here

The opioid crisis was real, and federal attention was warranted. But the response conflated two very different problems: the surge in overdose deaths, which by the early 2020s was overwhelmingly driven by illicit fentanyl, and the legitimate prescribing of opioids for chronic pain. When those problems were treated as one, the remedy, aggressive DEA and DOJ enforcement against prescribing physicians, fell on the wrong target.

The 2016 CDC opioid guideline was intended as flexible clinical guidance. It was rapidly converted into a rigid enforcement tool. Dosage thresholds designed to prompt clinical reflection became quasi-mandatory ceilings. Prescribing outlier status, being in the top percentile of a regional database, started functioning as evidence of criminal intent. Physicians who treated the hardest cases, the sickest patients, the ones nobody else would see, found themselves in the crosshairs.

What happens to patients

The harms are not abstract. When physicians fear prosecution for treating chronic pain, they stop treating chronic pain. Patients with years of documented stability are force-tapered or abandoned. The medical literature on involuntary opioid tapering is sobering: withdrawal, functional collapse, psychological crisis, emergency department visits, and in the worst cases, death by suicide or illicit drug substitution.

Patients with neurologic pain conditions are especially vulnerable. Neuropathic pain, central sensitization, and mixed pain syndromes do not respond to uniform protocols. These patients often need individualized, long-term management that will never fit a simple dosage algorithm. When enforcement policy treats unusual but legitimate treatment as presumptive evidence of crime, clinicians who care for these patients face a stark choice: accept the legal risk or abandon the patient. Most choose to protect themselves. The patients lose.

What the Supreme Court actually said

Two Supreme Court decisions deserve far wider attention among practicing physicians. In Gonzales v. Oregon (2006), the Court held that the Controlled Substances Act does not authorize the Attorney General to declare a state-authorized medical practice illegitimate through executive action. The CSA targets drug diversion. It is not a national medical-practice code, and the federal executive branch cannot use it to define the standards of clinical care.

In Ruan v. United States (2022), the Court held that to convict a registered physician under the CSA, the government must prove that the physician knowingly acted outside the bounds of legitimate prescribing. It is not enough to show that a hypothetical expert would have done things differently. Malpractice and criminal distribution are not the same thing, and the law must treat them differently.

Those holdings set real limits. The problem is that enforcement culture has not fully absorbed them. Prosecutors still use outlier algorithms and nonbinding guidance as proxies for criminal intent. The gap between what the Supreme Court permits and what actually happens in investigations and prosecutions remains wide.

What needs to change

The fix is not to stop pursuing genuine diversion. Pill mills and sham practices should be prosecuted. The fix is to restore the line between law enforcement and medicine. Congress should amend the CSA to prohibit DEA and DOJ from using dosage thresholds, prescribing outlier status, or nonbinding guidance as stand-alone definitions of unlawful prescribing. Criminal liability for registered physicians should require proof of subjective criminal intent, as Ruan already demands, and jury instructions should make that standard explicit.

Before major prosecutions of pain-treating physicians, the Department of Justice should be required to obtain independent clinical review from board-certified specialists in pain medicine, neurology, or palliative care. The reviewer’s task is simple: Does this look like diversion, or does it look like a physician treating difficult patients under difficult conditions? When enforcement actions disrupt active pain practices, there must be continuity-of-care protections. Stable patients must not be left without medication and without options.

A call to the profession

The policy failure described here does not persist because nobody noticed. It persists because the medical profession has not responded with sufficient force. National specialty organizations issue position statements and move on. The physicians who are prosecuted face the system largely alone.

That has to change. Medical societies should build model frameworks distinguishing complex pain care from diversion, file amicus briefs in pending cases, and educate the judicial and legislative audiences that continue to conflate prescribing volume with criminal intent.

Patients in pain cannot wait. Many of them have already lost their physicians. Some have lost their lives. The profession that trained to treat them owes them more than silence.

Bill Bauer is a neurologist.