On Friday, Connecticut Governor Ned Lamont (D) issued a revised executive order regarding the coronavirus outbreak. His previous executive order had placed bans on large gatherings, like many other states had implemented, to mitigate the spread of COVID-19. Connecticut citizens objected, however, to a ban on entering or leaving nursing homes and convalescent care facilities, in violation of the U.S. Constitution.
Section 2 of the revised executive order now reads (emphasis added):
Limits on Nursing Home Visitors. Section 19a-550(b)(l2) of the Connecticut General Statutes, specifically providing that each patient in a nursing home facility, residential care home or chronic disease hospital “may associate … privately with persons of the patient’s choice, including other patients,” is hereby modified to provide that the Commissioner of Public Health may issue restrictions on the number, category and frequency of outside visitors and the screening and protective measures as the Commissioner may deem necessary to assure the health and welfare of patients in a nursing home facility, residential care home or chronic disease hospital, provided that nothing in this order or any order by the Commissioner may prohibit a visit, where sufficient protective measures are able to be put in place, from 1) at least one family member, domestic pminer, or other person designated by the patient, each day; 2) a patient’s attorney, conservator, or any process server related to matters under the jurisdiction of the Probate Court; 3) persons necessary to conduct hearings under the jurisdiction of the Probate Court; or 4) a person authorized by law to oversee or investigate the provision of care and services (e.g. ombudsman). Except as provided herein regarding visitors, nothing in this order shall suspend or modify the provisions of Sec. 19a-550(b)(l2) providing the right to communicate privately with persons of the patient’s choice, send and receive the patient’s personal mail unopened and make and receive telephone calls privately, unless medically contraindicated, as documented by the patient’s physician or advanced practice registered nurse in the patient’s medical record.
The previous executive order allowed the Director of Public Health to halt all visits to such facilities, and ordered that any resident who left could not return. Connecticut residents raised the obvious question – doesn’t that violate the 1st, 5th, and 14th Amendments to the Constitution? It’s one thing for the facilities themselves to issue such rules, or for the individual residents to choose to observe these limitations on their own movement – it’s quite another for the government to decree it. Someone who has not tested positive has had their right to movement and assembly removed by the force of government without due process.
Several other states issued similar orders, such as limitations on large gatherings, which brought up even more questions.
Let’s examine the claim by some that the U.S. Constitution doesn’t apply in the case of a state declaring an emergency, or that they’d rather trade liberty, however temporarily, for the security of stopping a pandemic from spreading further. Certainly vexing questions, and an understandable perspective, given the fear over an uncontrollable force. However, the Constitution is clear and the rights in question have been upheld by the Supreme Court.
Not being a lawyer, I went to an attorney friend. He agrees that these state government bans on assembly and movement are unconstitutional. This is what he told me:
The 1st amendment has been “incorporated” by SCOTUS, meaning it DOES apply to the states. Getting some push back on “well this is state and local, not the federal govt.” Doesn’t matter. NO government entity has the authority to violate the 1st amendment. If you need to cite a case, cite Gitlow v. New York, 268 U.S. 652 (1925).
Jeff Reynolds is the author of the book, “Behind the Curtain: Inside the Network of Progressive Billionaires and Their Campaign to Undermine Democracy,” available now at www.WhoOwnsTheDems.com. Jeff hosts a podcast at anchor.fm/BehindTheCurtain. You can follow him on Twitter @ChargerJeff.