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The American Civil Liberties Union of West Virginia and Mountain State Justice have refiled their lawsuit against state health officials over their enforcement of Gov. Patrick Morrisey’s executive order allowing religious exemptions to the state’s strict school vaccination requirements.
The organizations refiled the complaint Friday in Kanawha County Circuit Court. They originally filed the lawsuit May 23 on behalf of Marisa Jackson, of Kanawha County, and Dr. Joshua Hess, of Cabell County. Jackson and Hess are both parents of immunocompromised students. Hess is also a pediatric hematologist and oncologist practicing at Marshall Health’s Cabell Huntington Hospital.
It names as defendants the state Department of Health, Bureau for Public Health along with Justin Davis, interim commissioner for public health and Arvin Singh, the state’s cabinet secretary for the health department.
In July, Kanawha Circuit Judge Kenneth Ballard dismissed the lawsuit for procedural reasons, agreeing with an attorney for the state who argued that the organization failed to give the 30-days notice required by state law when suing a governmental agency.
In the refiled complaint, the organizations note that the judge originally dismissed the lawsuit because of its failure to “adequately articulate a claim for injunctive relief” rather than a deficiency with its constitutional claims.
“This action is now ripe for re-filing with pleadings that cure the procedural deficiencies identified by the court,” they write. “The underlying constitutional violations that prompted the original litigation remain unaddressed and continue to cause ongoing harm. Additionally, Plaintiffs/Petitioners have gained substantial insight into the unconstitutional manner in which
Defendants/Respondents are interpreting and applying the relevant statutory provisions, strengthening both the factual foundation and legal theories supporting this renewed challenge.”
In a news release Monday, the organizations said they’re seeking emergency relief to protect students as the new school year begins.
“Time is running out to protect West Virginia’s schoolchildren from a dangerous and unconstitutional policy,” ACLU-WV Legal Director Aubrey Sparks said in the news release. “While our previous case was dismissed on procedural grounds, the core of this issue is clear: What the state is doing violates the law and the West Virginia Constitution. We’re asking the court to act immediately before more children are put at risk.”
“This isn’t just about policy — it’s about protecting real children who will be sitting in classrooms next week,” Mountain State Justice Director Sarah Brown said in the news release. “Gov. Morrisey is gambling with children’s lives to score political points. We’ve seen what happens in other states when vaccine requirements are weakened, and we won’t let that happen here in West Virginia.”
The ACLU’s lawsuit is at least the second lawsuit filed in regards to the question of Morrisey’s executive order and the state’s school vaccination requirements. Morrisey’s executive order is still in place after the Legislature this year voted down a bill that would have inscribed religious exemptions into state code.
A Raleigh County judge last month ruled in favor of the parents of three students who were issued a religious exemption to the vaccination requirements and sued the state Board of Education for instructing school boards not to accept the exemptions.
Morrisey has argued the state’s school vaccination law should be read alongside the state’s 2023 Equal Protection for Religion Act to mean that families should get religious exemptions to the immunizations.
As West Virginia students head back to the classroom for the year, rules about vaccination requirements may vary by school.
The state Board of Education has not changed its guidance that public schools should accept only medical exemptions to vaccines.
The governor’s executive order does not apply to private schools, leaving them to decide whether to follow state law or the executive order.
The West Virginia Professional Charter Schools Board earlier this month voted to tell the state’s seven charter schools to follow the executive order and accept religious vaccination exemptions. That action led the state Board of Education last week to send a letter to the charter school board instructing it to follow the state’s school vaccination law, not the executive order.
Morrisey and the state Department of Health did not immediately return an email seeking comment.
In a post on the social media platform X last week, Morrisey promised that families seeking religious exemptions would win either in court or through legislative action.
‘Hold strong. I recognize that the Board [of Education] is creating hardships for families but we will keep pushing,” he wrote.
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