×

Opponents of Morrisey religious vaccine exemption order want second shot at lawsuit

(Graphic Illustration - Capitol Notes - Image generated through the use of ChatGPT)

CHARLESTON — Opponents of Gov. Patrick Morrisey’s executive order allowing for religious exemptions to West Virginia’s compulsory immunization law for school-age children were dealt a blow last month when their case was dismissed for technical reasons.

But they are filing their second lawsuit.

The West Virginia chapter of the American Civil Liberties Union and Mountain State Justice announced Friday they are filing a new lawsuit over Morrisey’s executive order in Kanawha County Circuit Court seeking a temporary restraining order to block enforcement of the executive order.

In July, 8th Judicial Circuit Court Judge Kenneth Ballard granted a motion filed by the West Virginia Department of Health to dismiss a request for a writ of mandamus filed in May by the ACLU-WV and Mountain State Justice. Ballard ruled that the groups did not follow state law, which requires that state agencies and officials be given a 30-day notice before a lawsuit can be filed against them.

ACLU-WV Legal Director Aubrey Sparks said in a statement Friday that it was important to file the second lawsuit to stop Morrisey’s executive order as students across the state return to school.

“Time is running out to protect West Virginia’s schoolchildren from a dangerous and unconstitutional policy,” Sparks said. “While our previous case was dismissed on procedural grounds, the core of this issue is clear: What the state is doing violates the law and the West Virginia Constitution. We’re asking the court to act immediately before more children are put at risk.”

State Code 16-3-1 requires children attending school to show proof of immunization for diphtheria, pertussis, tetanus, polio, measles, mumps, rubella, varicella and hepatitis B unless proof of a medical exemption can be shown. The lawsuits are in response to a Jan. 14 executive order issued by Morrisey citing the 2023 Equal Protection for Religion Act to allow for religious and conscientious objections to the state’s school vaccination mandates.

Both lawsuits were filed on behalf of Marisa Jackson, the parent of a child in Kanawha County schools who is prone to illness, and Dr. Joshua A. Hess, a pediatric hematologist and oncologist practicing at Marshall Health’s Cabell Huntington Hospital, as well as a parent of a child who is immunocompromised.

“Every day I see children whose immune systems can’t protect them from diseases that vaccines prevent in healthy kids,” Hess said. “When vaccination rates drop, these vulnerable children pay the price.”

In the first lawsuit filed in May, attorneys for the ACLU-WV and Mountain State Justice filed for a writ of mandamus asking the court to require the state Department of Health to follow the state school-age vaccine law instead of the governor’s executive order. But the second lawsuit seeks to ask the court to halt Morrisey’s executive order given that an attempt to codify that order with a bill during the recent legislative session failed.

“This executive order represents a fundamental abuse of power that threatens both public health and our constitutional system,” Sparks said. “The governor is attempting to single handedly overturn vaccine protections that the Legislature deliberately chose to keep in place. That’s not how our government works.”

The West Virginia Board of Education is considering an appeal in a different lawsuit in Raleigh County where a judge granted a preliminary injunction last month on behalf of three parents requiring the state board and the Raleigh County Board of Education to honor their religious exemptions approved by the Department of Health. A hearing on a permanent injunction in that case is scheduled for Sept. 10.

Despite Morrisey’s executive order, the state Board of Education has advised all 55 county school systems and the state’s public charter schools to continue to abide by the compulsory immunization law and not accept religious exemptions.

State board President Paul Hardesty sent a letter to Professional Charter School Board Chairman Adam Kissel reminding him that State Code requires public charter schools to abide by the compulsory immunization law the same as traditional public schools. Last week, Charter School Board Executive Director James Paul said he would continue to advise public charter schools to accept all vaccine exemptions approved by the Department of Health, even though the charter board’s attorney advised it to follow the state board’s guidance.

“As a public charter school authorizer, the Charter School Board is required to ensure that public charter schools are in compliance with applicable laws, regulations and policies, including the current immunization law,” Hardesty wrote. “It is our duty as a state board to advise you to comply with the June 2025 decision of the state board regarding this matter as it impacts West Virginia public school children and increases the risk of liability for the Charter School Board and the authorized public charter schools.”

Morrisey has been critical of the state board for standing by the longstanding compulsory immunization law and remains confident that his executive order will be upheld in the courts.

“I want every family seeking a religious exemption to the radical state school board policy to know that we have your back and will ultimately win this fight,” Morrisey said in a social media post Wednesday. “We will eventually win this fight, either in court (where we are 2-0 thus far) or with the Legislature. Religious freedom is a cornerstone of our constitutional system and required under state law.”

Steven Allen Adams can be reached at sadams@newsandsentinel.com.

Starting at $2.99/week.

Subscribe Today