×

Federal case challenging West Virginia vaccine law still pending while religious exemption lawsuits continue

(Photo Illustration - MetroCreativeConnection)

CHARLESTON — Cases in West Virginia circuit courts over the issue of Gov. Patrick Morrisey’s executive order allowing for religious exemptions to the state’s compulsory vaccine law are getting all of the attention, but a federal case pre-dating the executive order remains pending.

A joint status report was filed Monday afternoon in a case pending before the U.S. District Court for the Northern District of West Virginia in a case brought in 2024 by Upshur County parents Krystle and Anthony Perry on behalf of their child against officials with the Upshur County Board of Education and the West Virginia Virtual Academy, one of two statewide virtual public charter schools.

While attorneys for the parents want the stay lifted, attorneys representing Upshur County Schools officials and the West Virginia Virtual Academy want the stay to remain in place as one religious vaccine exemption case out of Raleigh County has a pending appeal to the West Virginia Supreme Court of Appeals, and another case out of Berkeley County is now being appealed to the state’s highest court.

“In previous status reports filed before this Court, the Parties had agreed to continue the stay given the various events that have been unfolding which has provided uncertainty as to whether this matter may be resolved without this Court’s intervention,” the parties stated in their joint status report. “However, at the time of the last status report, the Parties could not agree as to whether the stay should be continued…”

The case was first filed on July 5, 2024, challenging State Code 16-3-4, which requires children attending public or private 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 law provides no exceptions for those attending statewide virtual public charter schools.

In their 2024 complaint, attorneys for Krystle and Anthony Perry said that their child was already enrolled in the West Virginia Virtual Academy, but their attempt to re-enroll their child in the virtual charter school was denied due to the child not having the required vaccines. The attorneys argue that the Perry’s have religious beliefs that forbid them from vaccinating their child.

Their attorneys — Aaron Siri, Christopher Weist and John Bryan — argue that West Virginia’s compulsory vaccine law violates their First Amendment free exercise rights under the U.S. Constitution despite past legal rulings that have upheld the legality of the state vaccine law.

However, both parties in the lawsuit filed a joint motion on Jan. 22 to stay proceedings before U.S. District Judge Thomas Kleeh following Executive Order 7-25, issued by Morrisey on Jan. 14, ordering the Bureau of Public Health to establish a process for parents and/or guardians to seek a religious exemption to the compulsory immunization law, allowing for parents to submit to the department a signed letter as sufficient proof.

Morrisey cited the 2023 Equal Protection for Religion Act (EPRA), which prohibits excessive government limitations on the exercise of religious faith, to justify using an executive order to allow for religious vaccine exemptions.

Despite a failed attempt during the 2025 legislative session to pass a bill to codify a religious exemption within the compulsory vaccine law, Morrisey’s executive order remains in effect, prompting the West Virginia Board of Education to issue directives to all 55 county school systems to continue to abide by the compulsory vaccine law which only recognized medical exemptions.

Fourteenth Judicial Circuit Judge Michael Froble granted a preliminary injunction for parents — led by Raleigh County parent Miranda Guzman — in Raleigh County in July prohibiting state and local education officials from rejecting their granted religious exemptions. The Guzman plaintiffs are represented by the same legal team in the Perry case.

The state Board of Education and the Raleigh County Board of Education appealed that ruling to the state Supreme Court, which issued a scheduling order in September, with oral arguments possible after a Feb. 16 deadline. An order from Froble for a permanent injunction in the Guzman case is expected by the end of November.

Froble released an order Oct. 16 turning the Raleigh County case into a class action lawsuit for the more than 570 individuals granted religious exemptions to date, as well as any religious exemptions granted in the future. Despite Froble’s order supporting the Guzman preliminary injunction, circuit court judges in Kanawha, Mineral, and Berkeley counties have ruled against other parents seeking similar preliminary injunctions.

The nine Berkeley County families that were seeking a preliminary injunction against the state board and the Berkeley County Board of Education before 27th Judicial Circuit Judge Michael D. Lorensen filed a notice of appeal of Lorensen’s Sept. 24 ruling with the Supreme Court on Oct. 10.

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

Starting at $2.99/week.

Subscribe Today