A lawsuit challenging Gov. Patrick Morrisey’s directive to allow religious exemptions to vaccination requirements has been filed again.
The American Civil Liberties Union of West Virginia and Mountain State Justice filed a new version of the legal challenge after it was dismissed on technical grounds last month.
On Friday, the organizations filed an emergency request for a temporary restraining order as the new school year begins. The case has been assigned to Kanawha Circuit Judge Jennifer Bailey.
“Time is running out to protect West Virginia’s schoolchildren from a dangerous and unconstitutional policy,” said ACLU-WV Legal Director Aubrey Sparks.
“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.”
One of the plaintiffs, Marisa Jackson, is described as a Kanawha mother of a school-aged child who is particularly susceptible to illness if fewer classmates are vaccinated. The other plaintiff, Joshua Hess, is described as a pediatric hematologist and a Cabell County father of an immunocompromised child.
“Their ability to safely send their children to school is directly threatened by Defendants’ unauthorized expansion of exemptions to compulsory vaccination requirements,” wrote the attorneys filing the lawsuit.
The organizations filed a similar lawsuit earlier this year, but Kanawha Circuit Judge Kenneth Ballard dismissed it after concluding the filing had not complied with a requirement in state code to provide 30 days notice prior an action against a governmental agency.
The characterization of an emergency situation in the latest filing would likely represent an exception to the 30-days notice requirement.
This is one thread of a broader battle over West Virginia’s mandatory school vaccination laws specified in state code versus a separate section of law broadly outlining legal options for people who contend their religious beliefs are being curtailed.
The Morrisey administration says it is maintaining an executive order that the governor issued during his first week in office. Morrisey described the basis as the “Equal Protection for Religion Act,” which went into law in 2023.
Morrisey issued guidance on May 9 directing public school officials to comply with the executive order and asking private schools to do so.
Morrisey wrote in the guidance that parents and guardians may obtain an exemption by sending a signed letter to VaccineExemption@wv.gov including the student’s name and birth date, the name of the parent or guardian and their mailing address and the name of the school.
The lawsuit counters that no portion of the State’s Religious Freedom Restoration Act permits the governor to unilaterally suspend acts of the Legislature.
“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.”