HUNTINGTON — A federal judge has dissolved a temporary injunction against implementation of the new West Virginia syringe exchange law and denied a request for a permanent injunction.
U.S. District Court for Southern West Virginia Judge Robert Chambers issued his decision Thursday, a week after hearing arguments in his Huntington courtroom as to why the temporary injunction should extend throughout trial.
The American Civil Liberties Union of West Virginia filed a lawsuit this month on behalf of Milan Puskar Health Right, a clinic running harm reduction services, including a syringe program, in Morgantown; Lawson Koeppel, president of the Virginia Harm Reduction Coalition, according to the West Virginia Secretary of State’s Office; Alina Lemire; and Carrie Ware.
Senate Bill 334 established a licensure program for harm reduction programs operating syringe exchanges. Programs must offer a full array of harm reduction services. SB 334 includes restrictions that go against Centers for Disease Control and Prevention standards, such as a model in which for every syringe returned, the person is given a new syringe, and requiring syringes be unique to the program.
The legislation includes a $10,000 fine and potential legal injunction for any entity or person who fails to meet the standards set in the bill.
“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,” ACLU legal director Loree Stark said in an email.
Earlier this week, the state filed an affidavit with the court with the updated emergency rules, which stated it is ready to file with the Secretary of State’s Office as soon as the court permits.
The rules clarify issues that Health Right executive director Laura Jones testified were unclear in the law, including what services her organization needs to offer to still legally operate until it completes the licensing process.
Stark said in court that she believes the entire law needs to be rewritten to be constitutional, but Chambers found the entities suing will not suffer “irreparable harm” because the law doesn’t go into effect for them until January.
Chambers found the plaintiffs are only likely to succeed on one of three claims left from the complaint — violation of the equal protection clause.
The violation revolves around one section of code: 16.64.10(d). The final section of code, it states programs not offering “a full array of harm reduction services as defined in this section” must cease and desist. New providers have until January 2022 to come into compliance with the section.
As written, the plaintiffs argue it benefits new providers, which can operate without offering “a full array of harm reduction services” while already existing operations must cease.
State attorneys argue it actually benefits existing providers by pointing to earlier sections of the code that require all new and existing providers to get a license. But Chambers rejects their reading of the statute.
In footnotes, Chambers acknowledges what he previously called clumsily written code, but says it is clear the Legislature’s intent was the grace period to apply to the entire article of code.
In the draft of the emergency rules filed, the grace period is clarified and explicitly prohibits new providers from operating before January. In his order, he writes although the court does not decide whether the Office of Health Facilities Licensure and Certification (OHFLAC) can enforce the rule, it doesn’t matter because none of the plaintiffs are new providers.
Chambers also concluded that the same section of code is poorly written as to ceasing operations if other harm reduction services are not offered, but still said the plaintiffs were not likely to succeed due to testimony from OHFLAC Director Jolynn Marra.