West Virginia Governor Issues Executive Order to Grant Religious Vaccine Exemption, Backs Lawsuit
- by Carolyn Hendler, JD and Barbara Loe Fisher
- Published
- Conscience
West Virginia is one of the five states that fails to provide a religious exemption to compliance with public health laws requiring multiple doses of vaccines for children to attend school. The other states without a religious vaccine exemption include California, New York, Maine and Connecticut.1 2
West Virginia is the only state that has never provided a religious exemption to vaccine mandates for school attendance although, like all 50 states, it has provided a medical exemption to vaccination.
State legislatures have the constitutional authority to make public health laws governing residents of a state and, although families in West Virginia have worked for decades to persuade elected legislators to amend public health law to provide a religious exemption to vaccination for children attending state regulated child care centers and schools, the legislature has repeatedly declined to do it.
However, West Virginia has recently taken steps to re-affirm the
freedom to exercise religious beliefs. The West Virginia legislature
passed the Equal Protection for Religion Act in 2023 (also referred to
as the Religious Freedom Restoration Act).3 4
which has been passed in some form by 23 other states. Also, the West
Virginia Constitution has a “take care” clause, which gives power to the
governor as chief executive to “take care that the laws be faithfully
executed.”5
Governor Implements Executive Order Granting Religious Vaccine Exemptions from State Mandates
On May 9, 2025, West Virginia Governor Patrick Morrisey circumvented the public health law making authority of the state legislature and implemented Executive Order 7-25 granting religious exemptions from mandates for multiple doses of vaccines for chickenpox, hepatitis B, measles, mumps, diphtheria, polio, rubella, tetanus and whooping cough.6
The Governor justified the Executive Order by citing the free exercise clause in both the U.S. Constitution and the West Virginia Constitution, as well as the state’s 2023 Equal Protection for Religion Act (EPRA). The EPRA prohibits the state’s government from taking any action that substantially burdens a citizen’s exercise of religion.7
The West Virginia Constitution’s freedom of religion clause is broad, setting forth that no resident shall:
… be enforced, restrained, molested or burthened, in his body or goods, or otherwise suffer, on account of his religious opinions pr beliefs, but all men shall be free to profess and by argument, to maintain their opinions in matters of religion…8
In support of the Executive Order, the Governor stated,
No government entity, whether state or local, may burden an individual’s religious liberty. In my view—and I think the view of many, many people—this applies to the topic of religious exemptions for vaccines. And that 2023 law was passed over any of the conflicting laws.9
Mother Sues State Board of Education for Denying Religious Exemption to Vaccination
Miranda Guzman, a widow and mother of a four-year old daughter, has filed a lawsuit suing the Raleigh County Board of Education, the West Virginia School Board and Superintendent for refusing to recognize a religious exemption to compulsory vaccination she filed with the West Virginia Department of Health so her daughter could attend public school. Her lawsuit alleges that the West Virginia school system denied the young girl the fundamental right to an education guaranteed under the West Virginia Constitution when they refused to allow her to attend school without the mandated vaccines.10 11 Guzman is a widower whose survivor benefits will end in 2027 and she will have to go back to work as a nurse, so she will be unable to keep her daughter at home.
Guzman maintains that it is against her religious beliefs to give her child vaccines for which manufacturers have used aborted fetal cells in the development process.12 She argues that the school’s refusal to allow her daughter to attend school because she has not received all of the state mandated vaccines is depriving the child of the fundamental right guaranteed by the state: the right to obtain a free public-school education.13
The West Virginia Board of Education Votes to Ignore Governor’s Executive Order
The State West Virginia Board Of Education (WVBOE) voted to disregard the Governor’s Executive Order 7-25 which granted religious exemptions to compulsory vaccination. The WVBOE legally justified this action because it does not report to the Governor.14 The local school board defendants cited the vote by the WVBOE to disregard the Governor’s Executive Order when they refused to allow Guzman’s daughter to attend school with a religious exemption to vaccination.
The WVBOE said:
The intent of the State Board is to do what is best for the 241,000 children, 23,000 educators, and 15,000 service personnel in our 629 public schools. This includes taking the important steps of protecting the school community from the real risk of exposure to litigation that could result from not following vaccination laws. This Board is constitutionally bound to provide a thorough and efficient system of free schools, and our members remain committed to this charge.
Other Vaccine Exemptions Have Been Allowed
While West Virginia does not allow for religious exemptions, it has provided a medical exemption to vaccination. Teachers and school administrators and staff are not required to comply with the compulsory vaccination requirements.15 Guzman’s plaintiff brief points out that it is illogical to only ban unvaccinated children from being in the school under the pretext of protecting the safety of all, when all of the staff have not been required to receive the same mandated vaccinations as students.
Required Shots Do Not Prevent Infection and Transmission
The Complaint sets forth that most of the required vaccinations do not prevent transmission of infection. Plaintiff cited certain required vaccines, such as diphtheria-tetanus-pertussis (DTaP/Tdap), as failing to prevent transmission of infection and, therefore, failing to contribute to ”herd immunity.” The Complaint further asserts that the varicella live virus vaccine poses a risk of transmission for up to six weeks post injection.16
Plaintiff’s Religious Beliefs Conflict with Receipt of Mandated Shots
In her Complaint, Guzman argues that she is strongly opposed to abortion and that her religious beliefs prevent her from injecting her daughter with vaccines for which manufacturers have used aborted fetal cells for development. The Complaint cites the admission by rubella vaccine developer Stanley Plotkin, MD under oath that he, ”worked with the chopped-up pituitary glands, kidneys, spleens, and hearts of seventy-six healthy, normally developing babies, whose tissue needed to remain alive to be used to culture viruses, whose mutilated bodies were utilized in furtherance of his research.”17
Governor, Patrick Morrisey Backs Family
Governor Morissey, in a public statement, backed the plaintiff.
Morrisey said:
You have an unaccountable set of bureaucrats in the school board that’s trying to take matters into their own hands. That’s unacceptable to me. I fully support Miranda’s ability to seek a religious exemption, and I support her lawsuit against school board bureaucrats. Remember, this is the politically unaccountable board who are trampling on her religious freedoms.18
Another WV Court Supported Challenge to Vaccine Mandates
The Honorable Thomas S. Kleeh, Chief Judge of the U.S. Northern District of West Virginia issued a preliminary injunction in support of a student challenging the state’s compulsory vaccination law based on the First Amendment’s Free Exercise Clause stating that the state did not show that the relevant state Code “is narrowly tailored to achieve the identified compelling state interest.”19
The “compelling state Interest” of states to override the exercise of religious or personal beliefs when it comes to protecting the public health and safety and “common good” has been invoked again and again by state courts and the Supreme Court of the U.S. in lawsuits challenging state vaccine mandates that do not include religious belief or other exemptions. In the seminal 1905 Jacobson v. Massachusetts case, the Supreme Court used the utilitarian “common good” rationale to deny an exemption to smallpox vaccination and, at the same time, affirmed the constitutional authority of state legislatures to make public health laws that do or do not include exemptions to vaccination.20 The contentious debate about vaccine mandates and religious exemptions continues in the U.S.120 years after that Supreme Court decision.21
The West Virginia lawsuit is centered on a power struggle between the Governor, the legislature and the Board of Education. Like a federal Presidential Executive Order, an Executive Order issued by a state Governor can be repealed by a successor, which is why it is not the best option for ensuring religious and other personal freedoms. The more permanent solution with regard to ensuring vaccine freedom of choice would be for the West Virginia legislature to exercise its constitutional authority to amend the state’s public health laws to either repeal all vaccine mandates or provide for flexible medical, religious and conscientious belief vaccine exemptions,
Former WVA Legislator Will Rule in Lawsuit on Religious Vaccine Exemption
Guzman’s lawsuit will be heard by Judge Todd Kirby of the 14th Judicial District, a former Republican in the House of Delegates. While in office, Kirby offered an amendment to House Bill 5105, which would have eliminated vaccine requirements for students using computers to attend public school virtually. The amendment sought to allow for a religious exemption for all vaccines in public and private schools.
The bill to provide religious exemption to vaccination for all public and private schools in West Virginia was vetoed by the former governor.22
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