ACLU Sues to Block Enforcement of West Virginia Needle Exchange Law

A group of plaintiffs, including a free health clinic and a number of Virginia and West Virginia residents, has filed suit against West Virginia officials to block the enforcement of a West Virginia law that is set to go into effect on July 9. The law, the Syringe Services Act, will increase regulatory burdens on syringe services programs, commonly known as needle exchanges.

The complaint, which seeks declaratory and injunctive relief, alleges a slew of constitutional and administrative challenges to the law. Additionally, the plaintiffs argued that the Syringe Services Act and another Act passed that same day create and modify overlapping sections of the West Virginia Code. As the other bill went into effect immediately, and the Syringe Services Act has yet to go into effect, the plaintiffs argued that key portions of the Syringe Service Act will go uncodified.

“If what remains of the Syringe Services Programs Act—Sections 16-64-4 through 16-63-10— is to go into effect on July 9, there will be no provisions in the law to define key terms in the legislation, to specify what may be required of applicants, or list what services a syringe service distribution program must comply with to avoid substantial penalties,” the complaint said.

“The absence of these significant provisions is fatal to the bill, rendering it so vague as to be in violation of the due process rights of providers as guaranteed by the Fourteenth Amendment of the United States Constitution.”

The signings of both bills took place within 20 minutes of each other, purportedly within the final hours of the legislative session. The plaintiffs argued that the law’s stated code sections cannot be changed by the legislature without violating separation of powers doctrine as well, as the executive branch of West Virginia has already signed off on the law.

In addition to the codification issues, the plaintiffs took issue with much of the remainder of the bill, including allegations of unconstitutional vagueness and violations of due process. The plaintiffs also argued that the licensing agency has no power to enact regulations that would provide legally necessary guidance to healthcare providers so that they may comply with the new law when it goes into effect on July 9.

The plaintiff is represented by the American Civil Liberties Union of West Virginia Foundation. In a tweet, the organization that “State lawmakers poured fuel on the nation’s worst HIV outbreak when they passed a bill eliminating most harm reduction programs in WV. That bill is also rife with constitutional defects. We’re suing to have SB 334 stopped and declared unconstitutional.”