A bill that could destroy syringe service programs in West Virginia is set to take effect despite a legal challenge. Senate Bill 334 was temporarily paused thanks to a case lodged by the American Civil Liberties Union of West Virginia. But after weeks of deliberation, the court has denied the injunction, allowing the bill to proceed.
Advocates aren’t done fighting. “We respect the court’s decision, although we are of course disappointed with the results of the ruling. We are considering our available options for moving forward,” Loree Stark, legal director at ACLU-WV, told Filter.
SB 334 received heated criticism from public health, legal and medical experts before it passed the legislature. It requires all new and existing syringe service programs (SSPs) to jump through multiple hoops in order to operate. The bill was supposed to be implemented on July 9, despite an HIV crisis in West Virginia. The Centers for Disease Control (CDC) called the rise of cases in the capital, Charleston, “the most concerning in the United States.”
“Enforcing it would be in violation of the constitutional right of due process.”
SB 334 was paused in late June after the ACLU-WV filed its lawsuit following discussions with SSPs and other distribution programs, “trying to make heads or tails of the law,” Stark said. The bill is so hazy, she continued, “that it would be difficult for any person reading it to really understand the scope of conduct that would be permitted or not permitted under the law. And the penalties are significant.”
The suit cited concerns over interpretation and implementation of the new law. “Enforcing it would be in violation of the constitutional right of due process,” Stark added.
While the court agreed that the penalties provided for are significant, it determined that they aren’t so high that the law would require the same level of scrutiny as criminal statutes. The July 15 decision states: “… although the Court agrees that this section reflects poor draftsmanship, it cannot conclude that these inconsistencies render the language so vague as to violate Plaintiffs’ due process rights.”
The denial of the injunction means that nearly all SSPs in the state could have to close their doors, given the onerous bureaucratic processes and written support of city and county commissions that the legislation requires.
Obtaining such written support would be a severe challenge in a state where many elected officials view harm reduction as a political issue, not a health response. Many areas, including Charleston, have responded to public support and clear medical evidence in favor of SSPs with restrictions based on stigma and conservative views.
The Charleston city health department closed its own SSP in 2018, with the support of Dr. Rahul Gupta, who was then West Virginia’s health commissioner and is now President Biden’s pick to head the White House Office of National Drug Control Policy (ONDCP). The city then passed even more restrictive SSP legislation in 2020, criminalizing SSPs.
At a meeting of Charleston officials and the CDC about the HIV epidemic in late June, the CDC recommended ensuring low-barrier syringe access to save lives—the opposite of what SB 334 will do. Analysis from the CDC also found that medical personnel and facilities in the county rarely conducted HIV testing on people who inject drugs.
While West Virginia may not be listening to the CDC, the federal government is. On the same day that West Virginia SSPs learned they might need to shut their doors, the Federal House Appropriations Committee allocated $69.5 million—a 435 percent increase in funding—to the CDC’s Infectious Diseases and Opioid Epidemic Program in order to expand access to SSPs.
“This historic allocation shows that Congress is finally listening to directly impacted people and advocates,” Maritza Perez, director of the Office of National Affairs at the Drug Policy Alliance, which led the effort, said in a press release. Legislators, she continued, are “starting to reckon with this public health crisis in a way that makes sense—dedicating public health resources to increase access to care and support services—versus criminalization and other ineffective responses, which have only exacerbated the harm and cost us more lives.”
In spite of national momentum and a dire need, the future of SSPs in West Virginia is under increasing threat.
Photograph of the Kanawha River in Charleston by Marduk via Wikimedia Commons/Public Domain
DPA previously provided a restricted grant to The Influence Foundation, which operates Filter, to support a Drug War Journalism Diversity Fellowship.