CHARLESTON – The West Virginia chapter of the American Civil Liberties Union filed a lawsuit on behalf of two parents Friday seeking to block an executive order by Gov. Patrick Morrisey allowing for religious exemptions to the state school-age immunization program.

Attorneys for the ACLU-WV and Mountain State Justice are representing two parents — Marisa Jackson and Dr. Joshua A. Hess — seeking a writ of mandamus from the Kanawha County Circuit Court directing the Governor’s Office to abide by the state’s mandatory immunization program for children entering public and private schools.

The lawsuit also asks Kanawha County Circuit Judge Kenneth Ballard for a declaration finding that Morrisey’s executive order is unlawful or invalid, as well as seeking attorney’s fees and costs.

State Code requires children attending school to show proof of immunization for diphtheria, pertussis, tetanus, polio, measles, mumps, rubella, varicella and hepatitis B unless proof of a medical exemption can be shown.

Morrisey signed Executive Order 7-25 on Jan. 14, citing the 2023 Equal Protection for Religion Act to allow for religious and conscientious objections to the state’s school vaccination mandates. The executive order required the commissioner for the Bureau of Public Health/state health officer to establish a process for parents/guardians to request religious or philosophical exemptions to school-age vaccines, only requiring a request in writing from the parent/guardian.

“Governors do not rule by decree,” said Aubrey Sparks, legal director for the ACLU-WV, in a press release Friday. “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.”

Hess is a pediatric hematologist and oncologist practicing at Marshall Health’s Cabell Huntington Hospital., as well as a parent of a child who is immunocompromised. Jackson is also the parent of a child in Kanawha County schools who is prone to illness. Jackson also advocated at the Legislature during the recent regular session against a bill introduced on behalf of Morrisey to allow for religious and philosophical exemptions to the state school-age vaccine mandate.

A bill introduced on behalf of the Governor’s Office — Senate Bill 460 — included a religious and philosophical exemption to school-age vaccines when it passed the state Senate in a 20-12 vote in February. The bill was amended by the House of Delegates to allow for at least a religious exemption for school-age vaccines, but it was defeated in a 42-56 vote in March.

An attempt in April by Senate Health and Human Resources Committee Chairwoman Laura Wakim Chapman, R-Ohio, to amend a limited religious vaccine exemption into another bill had to be walked back. Despite SB 460 being voted down, the state remains under Morrisey’s executive order.

Earlier this month, State Superintendent of Schools Michele Blatt issued a memorandum to county superintendents providing guidance for the 2025-26 school year requiring schools to abide by the state’s required immunization program for school-age children, but that memorandum was later rescinded due to pressure from the Governor’s Office.

The West Virginia Board of Education could address the issue of religious exemptions to the state school-age immunization program at its June monthly meeting. County school boards in Ohio and Kanawha counties are seeking advisory opinions from outside law firms regarding the legality of Morrisey’s executive order.

A request for comment from the Governor’s Office regarding the lawsuit was not returned. But in a May 9 press release, Morrisey issued guidance further stating that his executive order allowing for religious and philosophical exemptions remains in effect and encouraging state and county education officials to cooperate with the Bureau of Public Health, which is granting the requested exemptions by parents.

“Students will not be denied access to public education because of their religious objections to compulsory vaccination,” Morrisey said in his May 9 press release.

According to the U.S. Centers for Disease Control and Prevention, there have been 14 measles outbreaks reported nationwide since the beginning of 2025, with 1,046 confirmed measles cases reported by 31 states since Thursday.

“Parents should be able to know their child will be safe when they send them off to school,” said Sarah Brown, executive director for Mountain State Justice. “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.”