Two organizations filed a lawsuit on Friday over an executive order from West Virginia Republican Governor Patrick Morrisey that allows religious exemptions from school vaccine rules.
The American Civil Liberties Union’s West Virginia chapter and Mountain State Justice brought the lawsuit against the state Department of Health, its Bureau for Public Health, and top officials. The case was filed in Kanawha County Circuit Court on behalf of two parents.
Morrisey issued the vaccine exemption as part of several executive orders on his first full day as governor in January.
“Governors do not rule by decree,” said Aubrey Sparks, legal director for ACLU-West Virginia. “At the center of this lawsuit is who gets to make these decisions for our students. On this question, the state Constitution is clear that the authority lies with the Legislature, not the governor.”
The governor’s office and Department of Health did not respond to emails asking for comment on Friday.
Morrisey’s order changed a school vaccination rule that many medical experts have praised as one of the strongest in the country for protecting children. State law says students must get vaccines for chickenpox, hepatitis B, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus, and whooping cough before starting school. COVID-19 vaccines are not required.
Earlier this year, a bill that would have allowed religious exemptions to vaccine requirements passed the state Senate but was rejected by the House of Delegates.
State Superintendent of Schools Michelle Blatt sent a memo on May 2 to all 55 county superintendents suggesting that students without the required shots should not be allowed in school for the 2025-26 year. But on the same day, Blatt withdrew the memo after a request from Morrisey, according to the lawsuit.
Morrisey later said he had no plans to cancel the executive order. He explained that parents could apply for religious vaccine exemptions through the Bureau for Public Health.
The Harvard University logo is displayed on a building at the schoolLast year, Republican Governor Jim Justice vetoed a less wide-ranging vaccine bill passed by the Republican-majority Legislature. That bill would have exempted private school students and some students in nontraditional public schools from vaccine rules.
Morrisey, who was West Virginia’s attorney general from 2013 until becoming governor, said he believes religious vaccine exemptions are already allowed under a 2023 law called the Equal Protection for Religion Act. The law says the government cannot place a major burden on someone’s right to religious freedom unless it can show a strong reason to do so.
Morrisey has said that this law has not been fully or correctly followed since it was passed.
The lawsuit was filed for Dr. Joshua Hess of Cabell County and Marisa Jackson of Kanawha County. It says Hess has a child with a weak immune system and that Jackson’s child is more at risk of getting sick because fewer people are getting vaccinated.
Along with Mississippi, West Virginia has some of the worst health conditions and lowest life expectancy in the country.
“Parents should be able to know their child will be safe when they send them off to school,” said Sarah Brown, executive director of Mountain State Justice. “We are seeing the devastating effects of loosening vaccine requirements across the country, and that’s why the Legislature wisely declined to loosen the restrictions here in West Virginia. It’s vital that their decision not be undermined by the executive branch.”
