Former WV health officer testifies in Raleigh County vaccine lawsuit hearing

Slemp was West Virginia’s state health officer from 2002 to 2011 and again from 2018 through 2020. She testified Thursday during a hearing in Raleigh County Circuit Court.

Circuit Judge Michael Froble is overseeing two consolidated lawsuits in a battle over the state’s school vaccination law and religious freedom.

In one case, Miranda Guzman and other families are suing the West Virginia Board of Education and the Raleigh County Board of Education so that their children may attend school with a religious exemption for vaccines. The state school board has directed county boards not to accept religious exemptions.

Froble in July issued a preliminary ruling allowing students in the case to attend class, but the ruling is limited to those students. The hearing Thursday was on a permanent injunction in the case.

The other case is a lawsuit filed by Joshua Hess and Marisa Jackson, parents of immunocompromised children, who are suing the state Department of Health to stop it from issuing religious exemptions. The plaintiffs in that case are represented by the American Civil LIberties Union of West Virginia and Mountain State Justice.

All states require students attending school to be vaccinated against a number of infectious diseases. West Virginia has been one of only five in the country that do not allow students to opt out of the vaccination requirements because of philosophical or religious objections to the shots.

In January, Gov. Patrick Morrisey issued an executive order requiring the state to allow religious exemptions. Morrisey has not rescinded that order even though the state Legislature earlier this year rejected a bill that would have established the exemptions in state code.

Judge: 570 vaccine exemption applications received for 2025-26

As health officer, one part of Slemp’s job was to review appeals of decisions of the state immunization officer about medical vaccines exemptions. Slemp said the state has received on average 50 applications for medical exemptions per year over the last seven years, about 80% of which are approved.

By contrast, the state health department has received 570 applications for religious or philosophical exemptions for the 2025-2026 school year, Froble said.

She said even small percentages of religious and philosophical exemptions increase disease.

“They look like small numbers, but they are significant,� Slemp said.

Slemp said states that allow religious exemptions see a “multifold� increase of vaccination exemptions overall, which can contribute to disease outbreaks.

“So that does increase at a population level, the number of people that are unvaccinated, and that then therefore leads to increased risk of disease and outbreaks,� Slemp said.

Non-medical exemptions also tend to be in clusters, compared to medical exemptions which are evenly distributed, Slemp said. Different diseases require different levels of vaccination for “herd immunity.� So some counties may have higher risk than others.

Froble said Thursday that the state Department of Health has not said which of the 570 exemptions that have been sought are for religious versus philosophical reasons.

The distinction is important, he said.

Vaccine debate is 'a paramount issue' for W.Va.

Morrisey’s executive order is based on the 2023 Equal Protection for Religion Act, which says that “no state action may burden a person’s exercise of freedom of religion, unless doing so is essential and is the least restrictive means of furthering a compelling government interest.�

“If we are to really determine the application of the Equal Protection [for Religion Act], I believe the board is restricted only to consider religious exceptions, not philosophical exemptions,� he said. “They wouldn’t apply under the Equal Protection [for Religion Act.]�

Froble said part of the compelling state interest in the case is that if religious exemptions to the state school vaccination law are allowed, it may “open the floodgate� for people who don’t have religious beliefs but don’t like vaccines to get exemptions.

“I believe the court is very concerned with trying to protect the religious beliefs of individuals, but also believes that is a very compelling interest by the state to make sure that we protect children in our school… I think that’s a paramount issue that we need to address in this case,� Froble said.

Chris Weist, an attorney for families suing the state Board of Education, said he doesn’t know if the agency has a breakdown of philosophical and religious exemptions.

“I want to be clear, we’ve never made a claim in this case that our particular plaintiffs are entitled to enforce the exemptions that they’ve gotten from the health department necessarily,� he said. “What we said is, ‘we’ve got an EPRA claim. Our clients have sincerely held religious beliefs. That triggers EPRA.’�

Weist said one of the reasons they haven’t asked for a statewide ruling is because determining whether the 570 exemptions are religious or philosophical reasons would be challenging.

“I’ll be candid with the court, our team has discussed class wide relief, and that issue of 'Is it religious, or is it something else?' is a challenge to that,� Weist said.

Holly Wilson, an attorney for the state Department of Health argued that there is no distinction between a religious and a philosophical exemption.

“The West Virginia Supreme Court has already construed the term religious or religion for purposes of the First Amendment free exercise clause that religion encompasses philosophical objections,� she said. “These are one and the same… you can’t break these two things apart because they are the same.�

What's next?

The judge gave counsel in the lawsuits two weeks to write briefs about religious versus philosophical exemptions. The hearing in the case is expected to continue in October.