On April 8, 2026, the U.S. Court of Appeals for the Fourth Circuit, in a 2-1 opinion, reversed an injunction requiring the Upshur County Board of Education to permit an unvaccinated student to attend virtual classes. In Perry v. Marteney, et al., the court recognized West Virginia’s compelling interest “in vaccinating its citizens and protecting its school children” and found the state “legitimately exercised its police power to protect the health and well-being of school children when it enacted its compulsory vaccination law.” Because the statute, West Virginia Code §16-3-4, advanced the state’s compelling interest in a neutral and generally applicable way, the court applied a “rational basis” test and found the statute did not violate the free exercise clause of the First Amendment. Finding plaintiffs were not likely to demonstrate the statute was unconstitutionally applied, the court reversed the injunction. The dissenting judge would have affirmed the injunction.
The court recognized that Perry v. Marteney follows an “unbroken line of decisions” from the Supreme Court of the United States upholding similar school vaccination laws. In West Virginia, Perry arrives in the midst of challenges to the mandatory vaccination law. One day after taking office, Governor Morrisey issued Executive Order 7-25 finding the state’s Equal Protection for Religion Act (EPRA) requires religious exemptions to section 16-3-4. The Governor thus directed the Bureau of Health to provide a process for “religious” and “conscientious” objections. After the Governor issued the Executive Order, the 2026 Legislature declined to amend §16-3-4 to include religious objections. Meanwhile, parents supported by groups advocating against mandatory vaccinations have challenged section 16-3-4 in state and federal courts, arguing that vaccinations violate their religious beliefs. In W. Va. Bd. of Educ., et al. v. Miranda G. case, a Raleigh County Circuit Judge found that EPRA requires religious exemptions and issued a permanent injunction requiring school boards to accept unvaccinated students with religious exemptions granted by the Bureau of Public Health. The injunction is currently being challenged in the Supreme Court of Appeals of West Virginia.
Jackson Kelly PLLC is co-counsel for Jane Doe, a teacher who intervened in the Miranda G. case now pending in the state Supreme Court.