A multi-day, high-profile hearing over religious exemptions to West Virginia’s school vaccination laws ended on a cliffhanger.
After two days of testimony in September and two days of testimony this week, Raleigh Circuit Judge Michael Froble informed the court that he would not issue a ruling from the bench at today’s conclusion.
“I don’t believe at this point, I’m ready to make the ruling. I think that would be inappropriate without going back and carefully deliberating your positions,” Froble told the lawyers in the courtroom.
He later specified, “My intent is to make a ruling by the end of November, if not sooner.”
The case remains significant for several reasons.
One is that this week Judge Froble agreed to make it a class action, meaning that other families seeking religious exemptions all across the state would be affected by his ruling. Initially, the case affected only a couple of families from Raleigh County seeking access to local public schools without vaccination.
Moreover, everyone involved believes the case will be reviewed by the state Supreme Court. Lawyers for the state school board, which is trying to enforce the vaccine law as it is, have already laid groundwork for a Supreme Court appeal. That appears on track for oral arguments next spring.
In the meantime, there are cases in other courtrooms across the state. For example, a case over religious exemptions is active now in Kanawha Circuit Court. In Berkeley County, a judge denied a temporary restraining order for families seeking religious exemptions but still has a hearing set for mid-November to hear more details from the families.
It’s not clear how those judges are supposed to frame the cases in their courtrooms in the immediate term since the Raleigh Circuit judge ruled that a class action is appropriate but has not yet submitted a written order or a final ruling.
Froble actually has had two cases before him to handle at once.
The first was filed by Raleigh County parents who are asserting that the state and local school systems should honor religious exemptions to vaccination requirements. Froble granted a preliminary injunction this summer, specifically allowing those families to enroll the four affected students in local schools.
Froble agreed to pull in a Kanawha County case that comes at the conflict from another angle.
That second case was filed on behalf of parents contending their vulnerable children would be put at risk if the schools are opened to more students exempted from vaccines for communicable disease. That lawsuit challenges the constitutionality of an executive order by the governor.
These conflicts arose after Gov. Patrick Morrisey, who supports religious and philosophical exemptions, directed families seeking exemptions to send a signed letter to VaccineExemption@wv.gov and include name and birth date of the student, name of the parent, name of the school and mailing address of the student.
Morrisey’s administration and lawyers for families seeking religious exemptions to school vaccination requirements have consistently cited West Virginia’s “Equal Protection for Religion Act,” which went into law in 2023.
The policy lays out the ability of individuals who believe their religious rights have been violated to seek a claim in court. The law says no state action may burden an individual’s exercise of religion unless it’s essential to furthering a compelling governmental interest and is the least restrictive means of achieving that.
West Virginia students entering school for the first time must show proof of immunization against diphtheria, pertussis, tetanus, polio, measles, mumps, rubella, varicella, and hepatitis B unless properly medically exempted.
Members of the state school board maintain the mandatory vaccination law should be interpreted based on its straightforward language. The House of Delegates earlier this year voted down a bill that would have added an explicit religious exemption to the vaccination law.
Chris Wiest, a lawyer representing families seeking to have religious exemptions honored by the schools, said the state health department’s system is adequate and should be enough. He suggested families can be trusted if they say their deeply held beliefs are being infringed upon.
“The reality is, if you think about it, no one’s going to request an exemption if it didn’t burden their beliefs,” Wiest said in his closing statement.
Wiest contended that the state school board has not demonstrated that it has chosen the least restrictive means of enforcing vaccination policies.
“So it’s not enough for the defendants to say, ‘Well, geez, we think vaccination is good. We think public health will be furthered by it,” Wiest said. “They have to show that it’s essential, and that, I think, is one of the areas where we disagree with them.”
Lawyers for the Attorney General’s Office, representing the state department of health and its process of approving religious exemptions, said that families who have expressed concern about having their children exposed to unvaccinated classmates would have to demonstrate more immediate harm.
“There’s been voluminous testimony about the fact that any degradation in herd immunity, if any ever even occurs, would happen over an extended period of time. So it’s not imminent, and it’s not actual,” said Holly Wilson, deputy solicitor general representing the health department.
The process the state has chosen, though, is wide open, argued Aubrey Sparks, legal director for ACLU-West Virginia, one of the firms representing families who contend their vulnerable children risk greater exposure to communicable disease from unvaccinated classmates.
“A rubber stamp means that any number of children can get one regardless of their religious belief,” Sparks said.
The lawyer representing the Raleigh County school board, Corey Palumbo, said a broad interpretation that the religious freedoms act washes over all of state law opens up all kinds of of potential consequences beyond just the compulsory vaccination law.
“It’s poised to blow huge holes in every part of the state code,” Palumbo said. “If you can just sign a self executing statement to get out of the CVL, what other section of the code can you not do that for?”
The lawyer for the state Board of Education, argued that vigorous adherence to the school vaccination law is in the public interest and suppresses the spread of disease.
For 80 years, attorney Christopher Smith said, West Virginia’s school vaccination law has done the job of protecting children.
“A $3 measles vaccine is a lot better for the state in the long run than the tes or hundreds of thousands of dollars that need to be spent on containment of the disease when it flares up due to lack of vaccination,” he said.