Health providers across West Virginia are awaiting a decision in a federal lawsuit challenging the constitutionality of a new state law that places tighter restrictions on programs that distribute needles in the state.
Faced with the new law, passed during the last legislative session over the objections of health experts, some harm reduction programs — like the one operated by the Cabell-Huntington Health Department — are figuring out a way to comply. But others, like a program in Marion County, have said the law is unworkable for them.
The lawsuit, filed by the American Civil Liberties Union of West Virginia in U.S. District Court for the state’s Southern District, will determine whether the law is allowed to go into effect. But for now, U.S. District Judge Robert C. Chambers has blocked the law with a temporary restraining order while he reviews the case.
Laura Jones oversees the harm reduction program operated by the Milan Puskar Health Right clinic in Morgantown, which is one of the plaintiffs in the case. She said the past few months have been “incredibly stressful” and she’s worried for the people who rely on the clinic’s program for access to sterile needles. She said that the new rules have resulted in a lot of questions about what does and doesn’t violate the law.
West Virginia has a high prevalence of injection drug use and high rates of transmissible diseases like hepatitis C and HIV. The combination makes the state extremely susceptible to outbreaks of disease, but health experts say that providing people who inject drugs with clean needles is an inexpensive and effective way to prevent spread. Doing so keeps disease down and does not increase the likelihood of drug use, according to the federal Centers for Disease Control and Prevention.
The lawmakers who advocated for the bill restricting needle services argued that the state was overrun by syringe litter and that certification guidelines were necessary.
“What the bill was trying to address was syringe litter, and there are ways to do that and we are happy to do that. But it went way beyond that,” Jones said. “We have an opportunity now to keep our levels [of disease] in check. We know it will be harder to do that if the law goes into effect.”
West Virginia Department of Health and Human Resources Secretary Bill Crouch, who is listed as a defendant in the lawsuit, did not respond to a request for comment. But in a response to the lawsuit, filed on July 2, he argued that the plaintiffs “are needle-exchange program operators who are unhappy that the West Virginia Legislature passed Senate Bill 334,” and asked that the judge dissolve the restraining order and drop the case.
The legal challenge to the new state law is the latest effort to prevent what health experts warn could result in “powder kegs” of HIV erupting across the state. And while there are numerous parts of the law that ACLU attorneys say are unconstitutional, the argument at the center of the case is that the law was not written clearly and is therefore unenforceable.
“A lawyer can’t look at this law and tell you what conduct would and wouldn’t violate it,” said ACLU-WV Legal Director Loree Stark. “That’s a problem. Especially when those deemed to be in violation could face a $10,000 fine.”
But no matter the outcome, in the city with one of the “most concerning” HIV outbreaks linked to injection drug use in the country, where harm reduction arguably matters most, the lawsuit could have no impact. That’s because Charleston city lawmakers passed their own version of the measure that puts in place even stricter requirements.
‘Ordinances can be modified’
In 2020, Charleston recorded 39 cases of HIV related to injection drug use in a population that typically sees fewer than five a year. So far this year, there have been at least 17.
Officials from the CDC have been in Charleston several times since January; most recently last month as part of an Epi-Aid — when CDC employees come to town to provide support navigating and evaluating a disease outbreak. The CDC had made a similar visit to nearby Huntington in 2019 to help local health leaders address an HIV outbreak linked to injection drug use there.
In Huntington, federal officials recommended the city ramp-up access to clean syringes for people who inject drugs so that they don’t share or reuse needles. Although official recommendations have yet to be released in Charleston, CDC officials have shared the same message during meetings three times so far this year.
But the Charleston City Council moved instead to curtail syringe distribution, passing a city ordinance that went beyond the restrictions passed by the state and made failure to comply a criminal misdemeanor. Only one councilor, Robert Sheets, voted against the ordinance.
Now, regardless of the resolution of the lawsuit over the state law, Charleston has an additional hurdle.
Mayor Amy Goodwin, who voted with the majority to approve the city ordinance, defended her record on the subject in a recent interview with Mountain State Spotlight.
Goodwin said the vote was largely a response to West Side community members who were hurt that needles had been distributed in their neighborhood by a grassroots group without prior community conversation or consent.
She said the ordinance was the result of the politicization of a public health problem and that she still believes these decisions should be made by medical leaders rather than a political entity.
“We need our doctors, our physicians to be leading the charge, not nonprofits going into the community without community support,” Goodwin said. “That’s what my vote [was] about.”
But at a public hearing before the city council voted, medical leaders did speak out — they spoke out against the ordinance that was passed.
Those leaders included Dr. Shelda Martin and Christine Teague, who lead HIV prevention efforts at Charleston Area Medical Center; Dan Lauffer, the CEO of Thomas Health Systems; and former state health officer Cathy Slemp.
Goodwin said what she needs to see is a plan of action. If the two hospitals serving the city approached council with a blueprint for a program, she said she thinks there would be an appetite.
And if the plan didn’t fit within the confines of the ordinance?
“Ordinances can be modified,” Goodwin said.
‘We’re kind of in limbo’
Representatives from both of the hospital systems have been meeting and working on a plan to implement a syringe access program. Lauffer, from Thomas Health, and Teague, who leads the Ryan White HIV Prevention program at CAMC have been discussing the possible implementation of a program since early this year.
But making plans in an environment where rules are unclear and often changing has been difficult.
“CAMC and Thomas Health have met several times to discuss how we can go about managing HIV and hep C and work together to get people into treatment,” Lauffer said. “However, it’s been so politicized and rules keep changing. We’re kind of in limbo.”
It’s a similar situation programs have found themselves in across the state.
Lauffer said that following a ruling on the ACLU lawsuit, he hopes they’ll be in a position to continue forward with plans, but even then he says the city ordinance stands in the way.
“City council passed an ordinance that makes it difficult to even have [a syringe access program],” Lauffer said. “But to do nothing is a terrible thing.”