Touro Law Review


Society has a distorted view of those battling addiction and essentially marks them with a sign of disgrace; however, what society may not fully understand is that addiction is a disability beyond the afflicted individual’s control. The National Survey on Drug Use and Health indicates that 19.7 million Americans have battled a substance use disorder in their life. Of the 19.7 million Americans who battled illicit substance use disorders, approximately seventy-four percent also struggled with alcohol use disorder.

Based on these statistics, it is clear that illicit drug use disorders are often interconnected with alcohol use disorders. However, Congress makes a distinction between substances that are legal or illegal when determining if individuals are protected under the A.D.A. Thus, current illicit substance users will not be afforded protection. Granted, the state’s legitimate purpose is to deter individuals from engaging in the use of illegal substances. However, modern studies have shown that people’s addictions become biochemical in nature and may be exacerbated as a result of their genetic composition. At this point, these individuals are not consciously choosing to violate the law; instead, they are driven by the chemical imbalance in their brain and being punished for it. Ultimately, the current structure of the A.D.A. inherently discriminates against certain individuals based on their substance of choice, thereby favoring one person’s life over another’s simply because they chose an “acceptable” addiction. However, raising the level of scrutiny from rational basis review to intermediate scrutiny will prevent Congress from criminalizing diseases, such as substance use disorders.