CHARLESTON — In a legal opinion released Friday, West Virginia Attorney General Patrick Morrisey says vaccine mandates and passports could violate fundamental rights.
“There should be no reason for hesitation in passing a ban on vaccine mandates or passport requirements or, at a minimum, requiring religious or medical exemptions in such requirements,” Morrisey said. “President Biden has shown us the pathway of what not to do. We need to encourage and suggest, but not mandate, our way to public health. I will be in litigation against the Biden Administration very soon to protect West Virginians from this historic overreach.”
State Senate President Craig Blair and House of Delegates Speaker Roger Hanshaw sent a letter to Morrisey seeking the formal opinion.
Hanshaw
In the opinion, Morrisey noted that the mandates and passport requirements, especially those without any exceptions, could offend constitutional interest in personal medical decision-making, the sacred constitutional right to religious freedom and the fundamental rights to assemble, vote, petition and generally engage as a member of civil society.
Morrisey said even if a blanket mandate or passport requirement could pass constitutional muster, he could not endorse it. He wrote that a law requiring all state employees to be vaccinated or requiring all businesses to demand vaccine passports from all patrons would violate West Virginia's constitution and violate both state and federal law.
"The same finding would follow no matter what aspect of 'state' government is implicated; mandates and passport requirements imposed by counties, municipalities, and other public actors would give rise to the same legal concerns as a mandate or passport requirement imposed at the statewide level," Morrisey wrote. "We therefore urge any public entities to comply with such guidance and come into accordance with this opinion."
Morrisey wrote that a private employer’s mandate or vaccine-passport requirement also may violate federal and state anti-discrimination laws if it does not, at a minimum, provide for appropriate exceptions for those with religious- or disability-based objections.
Morrisey urged the state Legislature to ensure that employment-related policies contain, at a minimum, exceptions for those with religious objections and other objections, such as those of a medical or conscientious nature; and/or implement a religious or conscientious objector exception for compulsory school vaccinations.
"Legislation already implemented in states such as Arizona, Florida, Montana, and North Dakota provide examples of how such protections might be implemented in practice," he wrote.
Last month, Blair and Hanshaw asked Morrisey to issue a formal opinion about vaccination requirements and how the state Constitution would affect such policy.
“As you know, there has been an increasing amount of public discussion of late regarding the policies of mandatory vaccinations and vaccine passports,” they wrote in the letter. “With the quickening spread of the COVID-19 delta variant, it would be extremely helpful to better understand how such policies may implicate the W.Va. Constitution and W.Va. Code 15-5-6, which as you know provide extremely broad latitude to the executive branch during a declared State of Emergency.”
Hanshaw (R-Clay) explained why they asked for guidance from Morrisey.
“As we consider the appropriate stance for West Virginia to take while the national conversation continues on vaccines, masks, and other response measures to COVID-19, we felt like it was appropriate to ask the state’s chief legal officer to provide his opinion on the range of options available to the state,” Hanshaw told The West Virginia Record.
The letter asks three specific questions:
X Does the W.Va. Constitution prohibit the State of West Virginia from mandating the vaccination of state employees?
X Does the W.Va. Constitution prohibit the State of West Virginia from requiring “vaccine passports,” as have been required in other jurisdictions, in order to enter either public or private establishments throughout the state? For purpose of this request, a vaccine passport would be any certification or required verification through some documentary or electronic means that would make access to some public accommodation or service dependent upon proof of a required vaccination status.
X Does the W.Va. Constitution prohibit private organizations or businesses from implementing cither mandatory employee vaccinations or the use of vaccine passports in order to frequent the establishment? Would legislation, similar to measures which have been passed in other jurisdictions, prohibiting private organizations or businesses from implementing either mandatory employee vaccinations or the use of vaccine passports violate the U.S. and/or W. Va. Constitutions?
On social media, Morrisey has mentioned vaccinations in recent weeks.
In an August 26 post, he said he was “counting heads as to who opposes my proposal to prohibit requiring imposition of a vaccine passport on West Virginians,” noting that legislative leadership has “bottled up” the issue.
On Facebook, that post has more than 900 comments and nearly 350 share.
“I am asking that leadership to show itself and speak out on this issue,” Morrisey wrote. “Let’s get to the bottom of this and come clean on this issue.
“I serve as the chief legal officer of WV and advocate for freedom. Can we not get every Delegate and Senate behind us now?
“Who stands with us?”
The same day, Morrisey also posted on social media calling for the Legislature to “act and come together to fight as these mandates arise.”
“We need to act based upon science and not bureaucratic fiats,” he wrote. “Calling on the WV Senate and the WV House to act and ensure that the correct public health and constitutional instincts prevail.
“When will the WV Legislature step up to prohibit requiring vaccine passports? It’s already long past time. It’s time to step up.
“I am hearing very little about this and need all patriots to carry the word forward. We don’t need mandates in WV— Florida has led the way against these mandates. Why can’t WV follow suit?”