Families of immunocompromised students file lawsuit to stop Morrisey executive order

By Autumn Shelton, RealWV

CHARLESTON, W.Va. – The judicial branch of West Virginia’s state government has entered the debate on religious exemptions for school vaccines now that a lawsuit has been filed seeking to end Gov. Patrick Morrisey’s January 14 executive order.

On May 23, American Civil Liberties Union of West Virginia (ACLU-WV) and Mountain State Justice (MSJ) filed a lawsuit on behalf of Marisa Jackson and Joshua A. Hess, both parents of school-aged children who would be affected by decreased community use of immunizations, against the West Virginia Department of Health, Bureau for Public Health, Interim Commissioner for Public Health, Justin Davis, and WV Department of Health Cabinet Secretary Arvin Singh.

According to the petition for writ of mandamus filed in Kanawha County, West Virginia State Code requires children who are entering a school or a state-regulated child care center to be “immunized against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough.” However, Morrisey’s Executive Order No. 7-25 allowed for religious exemptions for school vaccines, in direct conflict with state law set forth by the West Virginia State Legislature.

Further, the petition goes on to discuss that although Senate Bill 460, which would have allowed for non-medical vaccine exemptions, passed the Senate during the recent legislative session, it was voted down by members of the House. Additionally, the petition discusses the recent controversy over Morrisey’s executive order and a memo issued by West Virginia Superintendent of Schools Michele L. Blatt.

On May 2, Blatt issued a memo to all county superintendents stating that students “not be allowed to attend school in the Fall of 2025 without required immunizations,” according to the petition. A few hours later, Blatt rescinded her original statement saying, “At the Governor’s request, I am rescinding the memo I sent earlier today regarding vaccine exemptions. We are working collaboratively with the Governor’s office to issue clear guidance to counties on how to comply with Executive Order 7-25. The Governor’s office has informed me that the West Virginia Department of Health will continue to review and grant religious exemptions to compulsory school vaccine requirements, and counties should honor those exemption requests that have been duly granted.”

Then, on May 9, Gov. Morrisey issued guidance on how his executive order should be implemented.

Lastly, the petition states that the Supreme Court of Appeals “issued a syllabus point directly addressing the heart of this issue, holding that when an Executive Order of the Governor conflicts with a nondiscretionary duty created by state statute, that the state statute must prevail. Syl. Pt. 1, State ex rel. Dodrill v. Scott, 177 W. Va. 452, 454, 352 S.E.2d 741, 742 (1986).”

The petitioners, Jackson and Hess, are seeking:

A Rule to Show Cause why the relief requested in this Petition should not be granted
A Writ of Mandamus directing the Respondent to fully comply with W.Va. Code § 16-3-1 et seq. notwithstanding Executive Order 7-25 and bar Respondent from awarding any exemptions that conflict with the statute
A declaration finding that the Respondents’ policy of permitting exemptions to requirements that are contrary to W. Va. Code § 16-3-1 et seq. are unlawful and invalid
Reasonable attorney’s fees and costs in bringing this action.

In a press release issued by the ACLU-WV on May 23, shortly after the petition’s filing, ACLU-WV Legal Director Aubrey Sparks said, “Governors do not rule by decree. 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,” said Sarah Brown, MSJ Executive Director. “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 press release continues that Jackson, who is the parent of a child who is particularly susceptible to illness, successfully advocated in the Legislature against the addition of non-medical exemptions to West Virginia’s compulsory immunization law, which the government is now disregarding.

Hess is also the parent of an immunocompromised child, and is a pediatric hematologist and oncologist practicing at Marshall Health’s Cabell Huntington Hospital. He provides regular care to immunocompromised children, who, along with his child, are significantly and directly impacted by negative health consequences arising from any loosening or weakening of community immunization standards.

The lawsuit has been assigned to Judge Kenneth Ballard.

Hess/Jackson filing

https://www.acluwv.org/sites/default/files/field_documents/hess_jackson_filing.pdf