Suit To Block Vaccine Exemption Executive Order Filed In Kanawha Court

On his second day in office, Gov. Patrick Morrisey signed an executive order giving parents the ability to opt out of school vaccinations for their children on religious or philosophical grounds. 

During the 2025 West Virginia Legislative session, a bill that would have changed state law to support the order failed after lengthy debate in the House of Delegates. 

Current state law says children must be vaccinated for chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough before beginning school. 

The governor later ordered the state school board to continue to accept the exemptions. Now, the American Civil Liberties Union of West Virginia (ACLU-WV) and Mountain State Justice (MSJ) have filed a lawsuit on behalf of two parents asking a court to stop state education officials from enforcing the executive order.

Earlier this month, Morrisey directed the state superintendent of schools to rescind a policy memo stating that philosophical exemptions would not be granted for the 2025/2026 school year. In a testy exchange, Morrisey pointed out that the executive order he signed grants those exemptions.

“Governors do not rule by decree,” ACLU-WV Legal Director Aubrey Sparks said. “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 lawsuit was brought on behalf of two West Virginia parents, Dr. Joshua Hess in Cabell County, and Marisa Jackson in Kanawha County.

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.

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.

“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 lawsuit was filed in Kanawha County Circuit Court on Friday, May 23, 2025 and assigned to Judge Kenneth Ballard.