West Virginia has the best kindergarten vaccination rates in the nation. A legal fight backed by RFK Jr. could threaten that

Vaccines Children's health Religion

When it comes to health, West Virginia is used to being on the wrong end of the numbers.

It's one of the poorest states in the nation. More than 1 in 4 residents depend on Medicaid, a program that provides health care for low-income children and some adults. West Virginia has the highest obesity rate in the nation among adults, according to the Robert Wood Johnson Foundation. The state earned an “F” grade from March of Dimes in 2024 for its high rate of preterm births.

But on childhood vaccination rates, it's a standout. During the 2023-24 school year, more than 98% of kindergarteners in West Virginia were vaccinated against diseases such as measles, pertussis and chickenpox, making it first in the nation, according to data from the US Centers for Disease Control and Prevention.

Those numbers have translated into protection, too. In the midst of the current measles surge, West Virginia is one of the few states that still hasn't reported a case. In 2024, it had one of the lowest incidences of pertussis, or whooping cough, according to the CDC.

West Virginia's high vaccination rates are a legacy of laws dating back more than 100 years that set strict requirements for public school and day care attendance. The state is one of five in the US that will exempt children from vaccines only for medical reasons. These exemptions must be reviewed and approved by the state Department of Health.

Now, a legal fight funded by outside groups and playing out in a county circuit court next week could chip away at this protection.

At issue are a pair of opposing lawsuits filed by parents with children in public schools.

The lawsuits were filed after the state's newly elected governor, Patrick Morrisey, a Republican, issued an executive order in January directing the state's Department of Health to allow parents to opt out of vaccine requirements if they had religious or moral objections. Morrisey had supported the issue as West Virginia's attorney general and campaigned on allowing religious exemptions.

That order conflicted with the state's code, however, and in March, legislators rejected a bill that would have weakened that law and codified religious exemptions to vaccination. The state's law stands, at least for now.

Late last month, the US Department of Health and Human Services weighed in with an unusual letter threatening more than a $1 billion in federal funding should the state's health departments fail to grant religious exemptions as the governor has ordered.

Shortly after, HHS Secretary Robert F. Kennedy Jr., who has long opposed vaccines and vaccine mandates, posted Morrissey's executive order on social media, saying, “I stand with @WVGovernor Patrick Morrissey.”

HHS issued a similar letter to all states on Thursday, telling them that respecting state laws regarding religious exemptions to vaccination was a condition of participation in the federal Vaccines for Children program.

Dorit Reiss, a law professor at the University of California at San Francisco, called the letter to West Virginia “highly problematic.”

“The letter looks like collusion to me. The governor wants to pressure the legislature and school boards into adding a religious exemption where they don't want to,” she wrote in an email to CNN. “HHS is helping the governor by threatening to withhold vaccines from West Virginia's children unless the legislature and schools cave.”

HHS did not respond to CNN's request for comment on the letter to West Virginia.

The legal fight in West Virginia is happening as school vaccine mandates are being reconsidered in some states.

On Wednesday, Florida's surgeon general, Dr. Joseph Ladapo, said the state would move to end all vaccine mandates, including those in schools. He said the Department of Health would end all non-statutory mandates, with the legislature looking into developing a package to end any others.

Florida's surgeon general, Dr. Joseph Ladapo, said the state would move to end all vaccine mandates, including those in schools. Chris O'Meara/AP

All 50 states have had immunization-related laws since the 1980s, with incoming kindergartners needing shots to protect against diseases including measles, polio and tetanus. No states require a Covid-19 vaccine for schoolchildren.

While many states now allow parents to opt out of vaccine mandates for religious or philosophical reasons, Florida would be the first to eliminate school vaccine requirements altogether.

The opposing directives in West Virginia put schools at odds with parents who had been asking for religious exemptions and the state's Department of Health, which had begun issuing religious exemptions as directed by the governor.

In May, State Superintendent Michele Blatt penned a memo directing schools not to accept religious exemptions for the 2025-26 school year. She rescinded that memo the same day, however, after pressure from the governor's office.

That paved the way for dueling lawsuits. Last month, West Virginia's attorney general asked that the cases be consolidated and considered together by the same judge.

The first lawsuit was filed by parents who say that West Virginia's strong vaccine laws protect their children who have underlying medical conditions that make it difficult for them to fight off infections.

Marisa Jackson's 10-year-old son, Maxwell, is in the fifth grade and attends public school. He has a rare genetic disorder called FoxG1 syndrome that affects his brain development. He relies on a wheelchair and has hypotonia, or low muscle tone, which makes recovery from any kind of respiratory illness a challenge.

“Something as simple as a common cold, that is not simple for him,” said Jackson, who lives in St. Albans, West Virginia.

She was joined in her lawsuit by Dr. Joshua Hess, a cancer doctor who lives in Huntington, West Virginia. Hess' daughter, Anessa, has a genetic condition called spherocytosis that resulted in the removal of her spleen, leaving her susceptible to infections. Any time she runs a fever, she needs intravenous antibiotics and must be seen by a doctor. Hess says she's exposed to a lot of germs at school, but because of the state's strong vaccination laws, “the likelihood of it being one of those infections that is particularly problematic in individuals with no spleen is a relatively lower risk,” Hess said.

Their case, which is being argued by the American Civil Liberties Union of West Virginia and Mountain State Justice, asks the court to force the Department of Health to follow the state code.

A second lawsuit, filed by parents who say they have religious objections against vaccinating their children, wants their schools to accept the religious exemptions they've been granted under the governor's executive order.

Marisa Jackson's 10-year-old son, Maxwell, has a rare genetic disorder called FoxG1 syndrome. Courtesy Lauren Love

The governor's order doesn't require parents to justify or explain their religious objections to vaccination, and lawyers arguing Jackson and Hess' case say that makes these exemptions philosophical in nature, so they shouldn't be protected under the state's Equal Protection for Religion Act, as the governor claims.

The lead plaintiff in the second case, Miranda Guzman, who lives in Raleigh County, West Virginia, obtained a religious exemption from the Department of Health this year for her daughter to attend kindergarten but was later told it wouldn't be recognized by her school district.

Alhough no major religions explicitly forbid vaccination, the complaint filed in Guzman's case says that she has been a Christian for decades and that she holds “sincere religious beliefs against vaccinating her child.”

The case states that, among other things, she objects to the use of aborted fetal cells in vaccines. Fetal cells were used in the 1960s to grow viruses that were used to manufacture vaccines. Cells derived from those original lines are used in vaccine production, but vaccines don't contain fetal cells.

Last week, Mark Brennan, bishop of the Catholic Diocese of Wheeling-Charleston, West Virginia, penned a letter to the faithful supporting vaccination.

“I share their moral repugnance at any connection to the taking of an unborn child's life,” Brennan wrote, urging parishioners to consider the fact that there have been no polio or measles outbreaks in West Virginia for many decades because of vaccines.

“We can accept a remote link to a moral evil, which we did not cause and do not endorse, because a far greater good can be obtained despite it,” Brennan wrote.

The complaint also said Guzman believes that vaccines would tamper with her child's God-given immune system and that she arrived at the belief she shouldn't vaccinate her child after prayerful consideration.

In July, Guzman and two other plaintiffs, Carley Hunter and Amanda Tulley, won a preliminary injunction against the schools, which allows their children to attend school this fall without vaccinations.

Attorneys for Guzman, Hunter and Tulley didn't grant a request to speak with their clients about their religious objections.

Their lawsuit is funded by the Informed Consent Action Network, or ICAN, an anti-vaccine nonprofit. ICAN was founded in 2016 by Del Bigtree, who served as Robert F. Kennedy Jr.'s communications director during his presidential campaign.

As Kennedy's profile has risen, so too has ICAN's. In 2023 — the latest year of data available — the group took in $23 million, roughly $10 million more than the year prior, according to its tax filings. The single largest expense reported by the group that year is more than $6 million paid to Siri & Glimstad, the law firm representing Guzman's case.

In 2023, ICAN filed its first lawsuit in West Virginia as part of its legal effort to “Free the Five” states without religious exemptions for vaccination. (The others are California, Maine, Connecticut and New York.)

Over the past decade, roughly 200 permanent medical exemptions to vaccination have been granted in West Virginia, according to numbers obtained through a Freedom of Information Act request to the West Virginia Department of Health. The request was filed by The 74, a nonprofit news outlet covering education.

Since Morrisey's executive order was issued in January, the Department of Health says, it has granted more than 500 religious exemptions for the current school year, according to the attorneys involved in Jackson and Hess' case.

Studies show that vaccination rates have fallen in 45 states that have allowed religious and personal exemptions, allowing vaccine-preventable diseases like measles and pertussis to resurge.

Jackson says she knows that it would take time to erode the state's strong herd immunity to a level that would put her son at risk, but she says that when vaccination rates fall as they have in other states that have allowed religious and philosophical exemptions, she will be forced to take him out of school. She did that when Covid-19 emerged as a threat, even before their local schools closed and went virtual.

If she has to take her son Maxwell out of school, there are few options left. Private schools she's called have told her they aren't set up to help a student with the kind of complex needs he has. They would have to home-school or hire a private teacher.

“This is a state that faces great economic hardship and poverty,” Jackson said. “To put that expectation on families is, I think, it's just not realistic, and it's not fair, especially when it is his right to attend public school.”

Anessa Hess lives without a spleen, which makes her more susceptible to infections. Sarah Dunlap Photography

Guzman's complaint says she has been receiving death benefits since her husband died in 2013. Those benefits will run out in 2027, and she will need to return to work as a registered nurse. If the state refuses to grant her daughter a religious exemption to attend school, the complaint argues, she'll have a hard time returning to work and providing for her family since she'll have to keep her daughter at home.

The ethics of vaccination

Ethically, then, whose child should have the right to attend public school?

“In my view, vulnerable kids, those who are at risk of becoming ill, have moral priority in state vaccine policies,” said Art Caplan, founding head of the Division of Medical Ethics at New York University's Grossman School of Medicine.

“If you're immunosuppressed and you're at risk of hospitalization or death because you get infected at school, that definitely should get priority over a parent's right to say they don't want to be vaccinated on philosophical or religious grounds,” Caplan said.

Aaron Siri, managing partner of Siri & Glimstad and one of the lawyers representing Guzman, questions whether the state's vaccination requirements really protect vulnerable students like Maxwell Jackson and Anessa Hess.

The state requires vaccination for only a relatively small number of infections, Siri wrote in an email to CNN, but there are hundreds of other pathogens that either don't have vaccines or aren't required for school attendance, like Covid-19 or the flu.

What's more, he wrote, many vaccines don't prevent transmission of infection completely, meaning vaccinated kids could still make others sick.

Dr. Paul Offit, a pediatrician and director of the Vaccine Education Center at the Children's Hospital of Philadelphia, said Siri is wrong that vaccines don't protect the vulnerable.

Although not all vaccines prevent the transmission of disease, some do. Measles, for example, was eliminated in the US in 2000 through intensive vaccination. Rubella was eliminated in 2004. Smallpox was declared eliminated worldwide in 1980.

Some infections have relatively short incubation periods — the time between when a person is exposed and when they start to show symptoms. In those cases, the immune system generally doesn't ramp up fast enough to block transmission completely, but even in those cases, studies have found that vaccinated people “shed less infectious virus for a shorter period of time,” Offit said. “So, do you eliminate transmission? No. But do you lessen transmission? Yes.”

Vaccines certainly protect vulnerable children who can't fight off infections. “You don't eliminate the risk, but you do lessen the risk,” Offit said.

Other doctors agree.

“Here in West Virginia, because of strong childcare and school immunization policies, for decades, we have seen high rates of immunizations and low, low rates of preventable diseases,” said Dr. Lisa Costello, a pediatrician who is president of the West Virginia Chapter of the American Academy of Pediatrics, “and I think that sometimes gets lost.”