One of the goals of this initiative has been to evaluate our civil liberties set against the state power of quarantine in times of pandemic. Recently, the number of deaths in nursing homes secondary to the complications of COVID-19 have been highlighted. As I started to read some of the stories of nursing home residents and the conditions in which they live – either in times of quarantine or otherwise – I wondered if their liberties were being impinged upon. In addition, and surprisingly, in my Constitutional reading I struggled to find even the most rudimentary protections for our aging population. The Constitution has provided us with certain liberties in life as we strive to establish ourselves however, there are no guarantees as we approach death. The closest I could come to an attempt at providing such was Washington v. Glucksberg, 521 U.S. 702 (1997).
In Glucksberg, the U.S. Supreme Court weighed whether the right to liberty under the due process clause conferred on individuals the right to die on their own terms. A majority of the court held that there was no such right, even to those in a terminally ill condition. The Court reasoned the state’s legitimate interest was the preservation of human life. How are we as a country doing in preserving human lives as that life approaches the inevitable – death?
Nursing homes have long had a reputation for warehousing the elderly and infirm in conditions that are unsanitary and depleted. A quick search of the internet for such yields an incredible number of law firms willing to represent residents and families of residents for a myriad of complaints. Interestingly, the residents of nursing homes are those who have been referred to in the media by politicians as “vulnerable” and in need of the protections of quarantine. However, close to 40% of the deaths contributing to the numbers reported as deaths by the CDC due to the complications of COVID-19 are nursing home residents. Are they being protected?
According to the CDC, the 2017-18 flu season yielded approximately 80,000 deaths and 900,000 hospitalizations. The largest percentage of these deaths were nursing home residents. In contrast to COVID-19, influenza is considered a “vaccine-preventable” infection. To be clear, it is not the flu virus that causes death but the complications that follow after the illness. These complications, and the likelihood of death, are increased if the individual contracting the virus has co-morbid conditions such as obesity, heart disease, diabetes, and lung disease. This is also the case with SARS-CoV-2, the virus responsible for COVID-19.
How can we claim to be protecting our most vulnerable in this time of quarantine and yet be faced with the fact those individuals are – and have been – dying of infectious diseases in the largest numbers? Is it the infectious disease or the environment in which they live? What liberties have these individuals been afforded in their debilitated state?
Certainly, these are tough questions and meant for meaningful thought, not to cast blame or stoke anger. I believe we are in a time of change and one of those changes is to rethink how we protect those who came before us and have contributed to the success of our way of life. If life is a circle, much like we protect our children, we must protect our aged and infirm. To claim to be doing so at present, in the name of quarantine, is not quite genuine. Compassionate contemplation, sound medical consideration, and public health policy reform is needed.
“If we stand tall it is because we stand on the backs of those who came before us” – African Proverb