Lawyers for families who say their immunocompromised children’s health would be threatened if exemptions to vaccine requirements were broadly granted have asked a local judge for a conclusive ruling in their favor.
This is one of two cases being heard concurrently by Raleigh Circuit Judge Michael Froble.
This one was originally filed in Kanawha County on behalf of parents contending their immunocompromised children would be put at risk if the schools are opened to more students exempted from vaccines for communicable disease.
The lawsuit challenges the constitutionality of an executive order by the governor.
Lawyers representing ACLU-West Virginia and Mountain State Justice last week asked for partial summary judgment, which is a ruling by a judge in a lawsuit that ends the case without a full trial, based on the conclusion that there are no genuine disputes of material fact and one party is entitled to win as a matter of law.
The attorneys are asking for an order compelling the state to follow West Virginia’s compulsory vaccination law, arguing that state officials have unlawfully granted non-medical exemptions, including those based on philosophical beliefs.
At the core of the motion is how to interpret West Virginia’s Equal Protection for Religion Act — specifically, whether philosophical beliefs qualify for protection without an individualized, fact-based analysis, which has not been an aspect of the process laid out by the state.
In a separate but related filing, the lawyers say such an analysis would help “determine whether an objection warrants protection under EPRA. Defendants failed to engage in this analysis when granting exemptions and failed to gather information that would permit this Court to conduct such an analysis.”
That filing continues by noting that the state has not been asking families for their reasons and that “individuals may object to their child receiving vaccinations on numerous grounds: some of these refusals would meet West Virginia’s definition of religion while others would not.”
West Virginia state law has a requirement that students entering school for the first time show proof of immunization against diphtheria, pertussis, tetanus, polio, measles, mumps, rubella, varicella, and hepatitis B unless properly medically exempted.
Gov. Patrick Morrisey had called for legislation this year allowing West Virginia families to declare religious and philosophical exemptions to the state’s school vaccination requirements.
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 guidance does not say the request for exemption must cite a particular religious belief or tradition.
ACLU-WV and Mountain State Justice are asking for the judge to direct the governor to fully comply with the vaccination law on West Virginia’s books while barring the executive offices from awarding any exemption that conflicts with state code.
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.
State officials, represented by lawyers from the Attorney General’s Office, have countered that the lawsuit on behalf of Jackson and Hess should be dismissed because of various procedural and legal failings, including a lack of pre-suit notice and standing.
“If this Court bypasses these fundamental failures, the Court should dismiss because Plaintiffs have failed to state a claim upon which relief may be granted,” wrote the lawyers for the state.
The lawyers for the state say the parents challenging the governors’ executive order have not been able to demonstrate irreparable harm.
“It’s a fact that they weren’t denied the right to an education; under no circumstances would their children be barred from school,” wrote the lawyers for the state.