The American Civil Liberties Union of West Virginia (ACLU-WV) and Mountain State Justice, Inc. today sent a letter to Gov. Jim Justice to put his administration on notice that specific provisions in Senate Bill 334 — the legislation that seeks to all but eradicate syringe service distribution programs in West Virginia — are unconstitutional. If Governor Justice signs this legislation into law, he will be opening up the state, county commissions and city councils to liability.
The two provisions of the law that provide significant constitutional concerns are ones that the legislature put back in to the bill at the last minute, mere hours before adjourning sine die on Saturday.
Specifically, the provision requiring program participants have West Virginia identification violates the privileges and immunities clause of the United States Constitution, which requires that “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the Several States.” Almost 50 years ago, the United States Supreme Court, in Doe v. Bolton, struck down a statute in Georgia that required that individuals must be state residents in order to access certain medical care. ACLU-WV and Mountain State Justice argue that the same analysis applies here.
The letter also alleges constitutional concerns arising from another last-minute addition to the bill: a local approval requirement that would require program applicants to get a letter of support from the majority of a county commission and city council in order to obtain licensing under the new regulatory framework. The statute does not provide any mechanism for appeal to either governing body in the event that a request is denied, which triggers significant due process concerns.
ACLU-WV Legal Director Loree Stark and Mountain State Justice, Inc. Executive Director Jennifer Wagner stated in the letter:
Senate Bill 334 is cruel legislation that will shut down syringe service programs across the state and deprive vulnerable West Virginians of access to life-affirming healthcare. But it’s not just abhorrent policy. When the legislature elected, in the final hours of session, to add an unconstitutional identification requirement and a local approval requirement with no due process safeguards, it also opened the state and its local governments up to significant liability.
Governor Justice, we urge you to veto this bill.