CHARLESTON – A lawsuit against state health officials seeking a temporary restraining order to stop enforcement of Gov. Patrick Morrisey’s executive order on vaccine exemptions has been refiled.
The American Civil Liberties Union-West Virginia and Mountain State Justice refiled the lawsuit August 15 in Kanawha Circuit Court on behalf of Marisa Jackson and Dr. Joshua A. Hess 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.
Jackson is a Kanawha County parent of a child particularly susceptible to illness, and Hess is 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.
On July 23, Kanawha Circuit Judge Kenneth Ballard ruled that original lawsuit had not properly provided the 30-day notice required for legal action against a state agency.
“Time is running out to protect West Virginia’s schoolchildren from a dangerous and unconstitutional policy,” ACLU-WV Legal Director Aubrey Sparks said. “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.”
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.
In May, 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.
The refiled lawsuit challenges Morrisey's effort to unilaterally create philosophical exemptions to West Virginia's vaccine requirements, contradicting the Legislature’s rejection of such exemptions during the 2025 session. State laws require students to be vaccinated for chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough.
"This executive order represents a fundamental abuse of power that threatens both public health and our constitutional system," Sparks said. "The governor is attempting to single-handedly overturn vaccine protections that the Legislature deliberately chose to keep in place. That's not how our government works."
The ACLU-WV says the emergency request for a temporary restraining order emphasizes the urgent timing as students return to classrooms across the state without the protection of established vaccine requirements.
“Every day I see children whose immune systems can’t protect them from diseases that vaccines prevent in healthy kids,” Hess said. “When vaccination rates drop, these vulnerable children pay the price.”
"This isn't just about policy—it's about protecting real children who will be sitting in classrooms next week," said Sarah Brown, MSJ Executive Director. "Governor 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."
Sparks said the big issue in about who makes these decisions.
“Governors do not rule by decree,” 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.”
