Could swine flu or other pandemics erode our constitutional protections?

Wall Street Journal: Public Safety v. Civil Liberties

In the current federal government, there is always an emergency on the horizon.  As Rahm Emmanuel has instructed the president, "You should never waste a crisis."

Massachusetts has legislation pending in the Senate that would effectively strip its residents of at least 5 constitutional protections "in the event of a health emergency."  They are not the only state which is taking action.  You may not be aware but several states already have laws which state that they may quarantine you "in the event of a public health emergency."  See the chart to determine if your state is one of those.

From MA SB 2028:

Section 2A. (a) Upon declaration by the governor that an emergency exists which is detrimental to the public health or upon declaration of a state of emergency under chapter 639 of the acts of 1950, as amended, the commissioner may, during such period of emergency, take such action and incur such liabilities as he or she may consider necessary to assure the maintenance of public health and the prevention of disease. The commissioner may establish procedures to be followed during such emergency to ensure the continuation of essential public health services and the enforcement of the same.

In circumstances where the governor declares that the emergency detrimental to public health is limited to a specified local area, the appropriate local public health authority, as defined in section 1 of chapter 111, may, with the approval of the commissioner, during such period of emergency, take such action and incur such liabilities as it may deem necessary to assure the maintenance of public health and the prevention of disease. Furthermore, in such circumstances, such local public health authority may, with the approval of the commissioner, establish procedures to be followed during such emergency to insure the continuation of essential public health services and the enforcement of the same. Nothing in this section shall supersede the normal operating authority of the local public health authorities, provided that such authority shall not be exercised in a manner that conflicts with any procedure or order issued by the Commissioner to assure the maintenance of public health and the prevention of disease during such emergency.

(b) Upon declaring a public health emergency or state of emergency, the governor may activate the state comprehensive emergency management plan and its associated processes, including authority pursuant to chapter 639 of the acts of 1950. Such declaration may authorize the deployment and use of any forces to which the plan applies and the use or distribution of any supplies, equipment, materials, and facilities assembled, stockpiled, or available.

(c) During such public health emergency or state of emergency, any person who renders assistance or advice during the emergency as provided in section 1 of chapter 258 shall be protected from liability to the extent provided by chapter 258.

(d) During such public health emergency or state of emergency, any person owning or controlling real estate or other premises who voluntarily and without compensation grants a license or privilege, or otherwise permits the designation or use of the whole or any part or parts of such real estate or premises for the purpose of assisting in responding to the emergency, shall not be civilly liable for causing the death of, or injury to, any person on or about such real estate or premises under such license, privilege, or other permission, or for causing loss of, or damage to, the property of such person, except in the event of willful, wanton, or reckless misconduct. The immunities provided in this subsection shall not apply to any person whose act or omission caused in whole or in part such emergency or who would otherwise be liable therefore.

The bill goes on to detail exactly how the state of Massachusetts would then be exempted from any liability (civilly or criminally) from any damage or harm that may come from its actions.  Without necessity of a warrant, authorities, or those acting on their behalf, could enter your home, search it, destroy anything within it, remove you from it, and/or quarantine you to it.

(b) Specifically, but without limiting the generality of section 2A and notwithstanding the provisions of any other law, the commissioner shall have and may exercise, or may direct or authorize other state or local government agencies to exercise, authority relative to any one or more of the following if necessary to protect the public health during an emergency declared pursuant to section 2A or a state of emergency declared under chapter 639 of the acts of 1950.. During either type of declared emergency, a local public health authority as defined in section 1 of chapter 111 may exercise authority relative to subparagraphs (1), (2), (3), (4), (6), (7), (13), (14), and (15); and with the approval of the Commissioner may exercise authority relative to subparagraphs (5), (8), (9), (10), and (11):

(1) to require the owner or occupier of premises to permit entry into and investigation of the premises;

(2) to close, direct, and compel the evacuation of, or to decontaminate or cause to be decontaminated any building or facility, and to allow the reopening of the building or facility when the danger has ended;

(3) to decontaminate or cause to be decontaminated, or to destroy any material;

(4) to restrict or prohibit assemblages of persons;

(5) to require a health care facility to provide services or the use of its facility, or to transfer the management and supervision of the health care facility to the department or to a local public health authority;

(6) to control ingress to and egress from any stricken or threatened public area, and the movement of persons and materials within the area;

(7) to adopt and enforce measures to provide for the safe disposal of infectious waste and human remains, provided that religious, cultural, family, and individual beliefs of the deceased person shall be followed to the extent possible when disposing of human remains, whenever that may be done without endangering the public health;

(8) to procure, take immediate possession from any source, store, or distribute any anti-toxins, serums, vaccines, immunizing agents, antibiotics, and other pharmaceutical agents or medical supplies located within the commonwealth as may be necessary to respond to the emergency;

(9) to require in-state health care providers to assist in the performance of vaccination, treatment, examination, or testing of any individual as a condition of licensure, authorization, or the ability to continue to function as a health care provider in the commonwealth;

(10) to waive the commonwealth’s licensing requirements for health care professionals with a valid license from another state in the United States or whose professional training would otherwise qualify them for an appropriate professional license in the commonwealth;

(11) to allow for the dispensing of controlled substances by appropriate personnel consistent with federal statutes as necessary for the prevention or treatment of illness;

(12) to authorize the chief medical examiner to appoint and prescribe the duties of such emergency assistant medical examiners as may be required for the proper performance of the duties of the office;

(13) to collect specimens and perform tests on any animal, living or deceased;

(14) to exercise authority under sections 95 and 96 of chapter 111;

(15) to care for any emerging mental health or crisis counseling needs that individuals may exhibit, with the consent of the individuals.