Two legal advocacy organizations filed legal action Friday over an executive order by Gov. Patrick Morrisey that requires the state health officials to recognize religious and philosophical exemptions to the state’s schools vaccine mandates — exemptions that are not a part of state law.
The American Civil Liberties Union of West Virginia and Mountain State Justice filed the writ of mandamus Friday in Kanawha County Circuit Court on behalf of Marisa Jackson, of Kanawha County, and Dr. Joshua Hess, of Cabell County. Jackson and Hess are both parents of immunocompromised students. Hess is also a pediatric hematologist and oncologist practicing at Marshall Health’s Cabell Huntington Hospital.
The petition asks the court to compel the state’s Department of Health and Bureau for Public Health to stop complying with the executive order.
“The question before this Court is simple: Can the West Virginia Governor, through Executive Order, override a clear and mandatory directive created by state statute and, in so doing, relieve state actors of nondiscretionary duties assigned to them through state code?” the petition says. “To that, West Virginia Courts have a clear and decisive answer: No, he may not. For that reason, Petitioner files this action respectfully requesting this Court compel Respondents to engage in their nondiscretionary duties as it relates to granting and denying exemptions to the state’s compulsory immunization statute.”
The petition also names as respondents Justin Davis, interim commissioner of the Bureau for Public Health, and Dr. Arvin Singh, cabinet secretary of the West Virginia Department of Health.
All states require that school students be vaccinated for certain infectious diseases like measles, chicken pox and polio. Until this year, West Virginia has been one of five states that allow only medical exemptions to those requirements.
In January, Morrisey issued an executive order directing state health officials to allow religious exemptions to the state’s school vaccine mandates. The executive order is based on the Equal Protection for Religion Act of 2023, which states that the government shall not “substantially burden” someone’s right to religious freedom unless doing so is essential to further a compelling governmental interest. The order also directed the state health officer to come up with legislation and rules to facilitate religious exemptions.
Senate Bill 460, legislation that would have established religious exemptions in state law, did not become law during the 2025 regular session. The bill passed in the Senate, but was rejected by the House of Delegates.
Despite the bill not passing, Morrisey has not rescinded the executive order. Schools in the state have had a fractured response to the order. Some private schools have said, despite the order, they will not recognize religious exemptions to the school vaccine laws.
State Schools Superintendent Michele Blatt issued a memo May 2 to county superintendents recommending that students not be allowed to attend schools next year without the required vaccinations. Before the day was up, though, the memo was rescinded at Morrisey’s request.
“Governors do not rule by decree,” ACLU-WV Legal Director Aubrey Sparks said in an ACLU news release. “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.”
“Parents should be able to know their child will be safe when they send them off to school,” Sarah Brown, executive director of Mountain State Justice, said in the release. “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.”
The petition has been assigned to Kanawha Circuit Judge Kenneth Ballard.
Emails to Morrisey’s office and to the state Department of Health seeking comment were not immediately returned Friday afternoon.
This article originally appeared on Werst Virginia Watch.
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