One thing President Donald Trump learned from his first term in office was that he had to act quickly in his second term to move his agenda forward. And he did. West Virginia Gov. Patrick Morrisey took the same approach, and now one of his executive orders probably will be reviewed by the state Supreme Court.
On Friday, May 23, the American Civil Liberties Union of West Virginia and Mountain State Justice filed a lawsuit in Kanawha County Circuit Court on behalf of two parents seeking a court to stop state education officials from enforcing MorriseyƵs executive order allowing religious exemptions of vaccination requirements to attend public schools.
The ACLU-Ƶ and Mountain State Justice filed the lawsuit on behalf of two West Virginia parents, Dr. Joshua Hess in Cabell County and Marisa Jackson in Kanawha County. Both are parents of immunocompromised children.
State law requires children attending public schools to be vaccinated for chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough. On his first day in office in January, Morrisey signed an executive order allowing religious exemptions from that requirement.
This past session, the Legislature rejected Senate Bill 460, which would have allowed those exemptions. The bill passed the state Senate but died in the House of Delegates.
Morrisey cites his authority under the Equal Protection for Religion Act of 2023 for his executive order. That law says the government cannot Ƶsubstantially burdenƵ someoneƵs constitutional right to freedom of religion unless it can prove there is a Ƶcompelling interestƵ to restrict that right. Despite the failure of SB 460, Morrisey says his executive order stands.
The state school system is caught in the middle. State school Superintendent Michele Blatt issued a memorandum to all 55 county superintendents on May 2 recommending that students not be allowed to attend school this fall unless they have all required vaccinations. Morrisey pushed back, and Blatt rescinded her memo.
No matter how the circuit rules, the matter likely will be appealed to the state Supreme Court. On the surface, it may appear the question before the Supreme Court is whether parents of children in public schools have the right to refuse to have their children vaccinated. The real question is whether Morrisey operated inside or outside his authority in using one law to prevent another law from being enforced when the Legislature specifically refused to accept that interpretation.
It would seem the Legislature spoke this year in refusing to enact SB 460 this year. But that is what the Supreme Court was elected to decide. Whichever way the court rules, the question could go back to the Legislature Ƶ where it belongs.
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