Kentucky’s Covid-19 Travel Ban Ruled Unconstitutional

The Brent Spence Bridge over the Ohio river connects travelers between Cincinnati and Covington, Ky. (Antony-22 via Wikipedia)

COVINGTON, Ky. (CN) — A federal judge Monday struck down a portion of Kentucky Governor Andy Beshear’s travel restrictions that were enacted to curb the Covid-19 pandemic.

Senior U.S. District Judge William Bertelsman ruled that Beshear’s restriction on interstate travel is unconstitutional. The restriction limited the reasons that Kentucky residents could leave the state and required that any person who left the state without a valid reason be self-quarantined for 14-days after their return.

As outlined in Beshear’s two executive orders, order 2020-206 and 2020-258, individuals were only permitted to leave the state for employment, to receive or provide health care, to obtain groceries or other needed supplies, and when they were required to do so by a court order. The orders also allowed a resident to travel outside the state to assist in caring for the elderly, a minor, dependants, or vulnerable or disabled persons.

Bertelsman found issues, however, with the restrictions, including the provision that prohibits Kentucky residents who live near the state’s border from visiting family in another state, while allowing them to travel much longer distances within state lines.

“After careful review, the Court concludes that the Travel Ban does not pass constitutional muster. The restrictions infringe on the basic right of citizens to engage in interstate travel, and they carry with them criminal penalties,” the 15-page opinion states. 

Bertelsman, a Carter appointee, also took issue with the self-quarantining penalty, positing in his ruling that enforcing the travel restrictions near interstate bridges would result in “massive traffic jams” due to necessary checkpoints and that the state would have to set up quarantine facilities to house the numerous people who violated the interstate travel rules.

Legal counsel for Beshear, and Secretary of the Kentucky Cabinet of Health and Family Services Eric Friedlander — who was also a defendant in the suit — filed a response to defend the restrictions.

“These recommendations intend to limit person-to-person contact and limit interaction in locations of heavy traffic, including airports and gas stations. But the Order also limits travel to the other states, all of which have taken different measures to contain the spread of Covid-19,” they wrote. 

“The facts on the ground evolve by the hour,” the response continued. “And the Governor can only control the restrictions in place in Kentucky. To ensure these restrictions sufficiently protect Kentuckians, the Governor must take action to reduce their exposure in all other states.”

The lawsuit also challenged limits placed upon mass gatherings, including church services, but the judge ruled those restrictions should remain in place. 

“The current public health crisis presents life-or-death dangers. Plaintiffs are not alone in having their lives and activities disrupted by it and the measures that our federal and state governments have taken to address it,” Bertelsman wrote. “Indeed, it is hard to imagine that there is any American that has not been impacted. But unless a law can be shown to have religion within its cross-hairs, either facially or in application, the fact that religious practices are impinged by it does not contravene the First Amendment.”

By upholding the mass gathering restrictions but striking down the interstate travel limits, Bertlesman handed the three individual plaintiffs of the lawsuit a mixed result.

“We were pleased with the travel ban decision,” the plaintiffs’ lawyer Christopher West said. “The right to interstate travel is a fundamental right and the Governor’s ban was not narrowly tailored. Under the ban, someone driving through Kentucky on the way to vacation who stopped for gas would have to quarantine for 14 days, no matter if they wore a mask, paid with a credit card, and had no contact with any other person.

“We were, at the same time, disappointed with the in-person church ban,” West added. 

Bertelsman’s ruling specifically mentions a decision from Sunday that was issued by the Sixth Circuit, which found in a separate lawsuit challenging the same mass-gathering restrictions that “drive-in” church services could be held but in-person gatherings could still be restricted.

“The balance is more difficult when it comes to in-person services. Allowance for drive-in services this Sunday mitigates some harm to the congregants and the Church,” the Sixth Circuit panel wrote. “In view of the fast moving pace of this litigation and in view of the lack of additional input from the district court, whether of a fact-finding dimension or not, we are inclined not to extend the injunction to in-person services at this point.”

The two rulings coupled together allow, at least for the time being, the restrictions on mass gatherings to remain in place. Beshear announced last week in his outline to reopen Kentucky that he plans to let churches hold in-person services starting on May 20, so long as precautions are taken.

West told Courthouse News that the individual plaintiffs plan to appeal the portion of the ruling that upheld the mass gathering restrictions.

The governor applauded the portion of the ruling dealing with mass gatherings.

“You get these rulings, and you look at them. I think it’s a really positive ruling because of mass gatherings,” Beshear said during a press conference on Monday. “It’s never been about trying to win a fight in court. I’ve been in court plenty. It’s about trying to do the right thing for our people.”

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