Groups sue over West Virginia governor's order on religious exemptions for school vaccines

CHARLESTON, W.Va. (AP) — Two groups filed a lawsuit Friday over an executive order by West Virginia Republican Gov. Patrick Morrisey granting religious exemptions from required school vaccinations.

The American Civil Liberties Union's West Virginia chapter and Mountain State Justice filed the lawsuit against the state Department of Health, its Bureau for Public Health and agency leaders on behalf of two parents in Kanawha County Circuit Court.

The vaccine exemption was among several executive orders issued by Morrisey on his first full day in office in January.

“Governors do not rule by decree,” ACLU-West Virginia legal director Aubrey Sparks said in a statement. “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 the Department of Health did not immediately respond to emailed requests for comment Friday on the lawsuit.

Morrisey's order upended a school vaccination policy long heralded by medical experts as one of the most protective in the country for kids. State law requires children to receive vaccines for chickenpox, hepatitis B, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough before starting school. The state does not require COVID-19 vaccinations.

Legislation that would have allowed religious exemptions to vaccination requirements, among other things, was passed by the state Senate and rejected by the House of Delegates earlier this year.

State schools Superintendent Michelle Blatt issued a memorandum to all 55 county superintendents May 2 recommending that students not be allowed to attend school in the 2025-26 without required immunizations. But that same day, Blatt rescinded the memo at Morrisey's request, according to the lawsuit.

Morrisey later issued a statement saying he had no intention of rescinding the executive order. He said parents can apply for a religious exemption from vaccinations through the Bureau for Public Health.

Last year, Republican then-Gov. Jim Justice vetoed a less sweeping vaccination bill passed by the Republican-supermajority Legislature that would have exempted private school and some nontraditional public school students from vaccination requirements.

Morrisey, who served as West Virginia’s attorney general from 2013 until he was sworn in as governor, said he believes religious exemptions to vaccinations should already be permitted under a 2023 law passed by the state Legislature called the Equal Protection for Religion Act. The law stipulates that the government can't “substantially burden” someone’s constitutional right to freedom of religion unless it can prove there is a “compelling interest” to restrict that right.

Morrisey has said that law hasn’t “been fully and properly enforced” since it passed.

The lawsuit was filed on behalf of Dr. Joshua Hess of Cabell County and Marisa Jackson of Kanawha County. It said Hess has a child who is immunocompromised and that Jackson has a child who, because of decreased community use of immunizations, is more susceptible to illness.

Along with Mississippi, West Virginia is the U.S. state with the worst health outcomes and lowest life expectancy rates.

“Parents should be able to know their child will be safe when they send them off to school,” said Mountain State Justice executive director Sarah Brown. “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.”