West Virginia Gov. Patrick Morrisey
CHARLESTON – Two parents have sued West Virginia state health officials to stop state education officials from enforcing Gov. Patrick Morrisey’s executive order regarding religious exemptions for vaccines.
Marisa Jackson and Dr. Joshua A. Hess filed the complaint May 23 in Kanawha Circuit Court against the West Virginia Department of Health, West Virginia Bureau for Public Health, interim Commissioner for Public Health Justin Davis and Department of Health Secretary Arvin Singh.
The complaint was filed by the American Civil Liberties Union of West Virginia and Mountain State Justice on behalf of Jackson, a Kanawha County parent of a child particularly susceptible to illness, and Hess, a Cabell County parent of an immunocompromised child.
Jackson 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 a pediatric hematologist and oncologist practicing at Marshall Health’s Cabell Huntington Hospital who provides regular care to immunocompromised children.
““Governors do not rule by decree,” ACLU-WV Legal Director Aubrey Sparks said in a statement. “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.”
The state Legislature rejected a bill during the 2025 session that would have granted broad philosophical exemptions to the state’s vaccine requirements for attending school, leaving in place the state’s longstanding policy of requiring students to be vaccinated for chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough.
Earlier this month, Morrisey directed state Superintendent of Schools Michelle Blatt to rescind a policy memo stating that philosophical exemptions would not be granted for the 2025-2026 school year, saying that the executive order he signed on his second day in office grants those exemptions.
“Parents should be able to know their child will be safe when they send them off to school,” MSJ Executive Director Sarah Brown said in a statement. “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.”
In the petition filed Friday, Jackson and Hess say the question before the 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 filing asks. “To that, West Virginia Courts have a clear and decisive answer: No, he may not.”
West Virginia law requires students entering school for the first time to show proof of immunization against tetanus, polio, measles, mumps and other diseases unless properly medically exempted. Morrisey sought legislation to allow families to declare religious and philosophical exemptions to the vaccine rules, but the House killed the bill in March.
Still, Morrisey signed an executive order about the issue during the first week of his term earlier this year, citing the “Equal Protection for Religion Act,” which became law in 2023.
Earlier this month, Morrisey ordered public school officials to comply with the executive order and asked private schools to do so as well.
“So people sometimes confused and said, ‘Well, it’s an executive order trying to override a statute,” Morrisey said earlier this month on MetroNews’ Midday program. “That’s nonsense. It’s an executive order that’s articulating the legal reasons why you have to reach this result, and it’s the correct result.
“Now we recognize that some people like to litigate, and they like to spend a lot of money. They should talk to the Attorney General’s office. They should talk to our office. But you can’t have a religious freedom law that has no meaning, and here we have individuals that believe very deeply in specific religions.”
Friday’s petition says the Religious Freedom Restoration Act doesn’t allow the governor to unilaterally suspend acts of the Legislature.
“Petitioners have a clear legal right to have their elected officials enforce laws that protect their children from unnecessary disease,” the petition states. “Respondents have a clear legal duty to issue exemptions only within the narrow provisions provided for by the West Virginia Legislature.
“There exists no other adequate remedy at law as respondents are continuing to wantonly violate clear state law at the request of the Governor.”
The petition was filed by Sparks with ACLU-WV and by Bren J. Pomponio of MSJ. The case has been assigned to Circuit Judge Kenneth Ballard.
Kanawha Circuit Court case number 25-P-253
