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Not Just for Gays: Hospital Visits and Respect for Autonomy

April 16th, 2010 No comments

Last night’s surprise action by President Obama was a heartening and welcome development. In a two-page memo to HHS Secretary Kathleen Sebelius, Obama requested that the Secretary promulgate rules that will increase the chances that the wishes of lesbian and gay hospital patients respecting visitation and decision-making will be respected rather than ignored. From the memorandum:

It should be made clear that designated visitors, including individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies), should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy. You should also provide that participating hospitals may not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability.

So far, I’ve not seen any criticism of this move from the right. I don’t expect much (but please let me know if you find any), because mostly everyone has conceded this point: “Oh, I’m in favor of gay people being able to visit each other in the hospital.” It’s an easy bone to throw us to make homophobia seem tolerant, and it has the benefit of feeding into the perception they’re trying to sustain that gay people are “sick.” So it’s a brilliant, unassailable — and overdue — move by the President.

What little criticism I’ve seen has come from the gays our ownselves. Here’s Andrew Sullivan:

There is something about the well-meaning liberal mind that is often admirably eager to help the needy, but balks at offering the recipients what we really want: simple equality. The latest move – giving Obama an easy win, the gay lobby a role in mediating the transaction – perpetuates the victimology that sustains the Democrats and their interest groups.

If we had marriage equality, we’d need no-one’s compassion. We’d just be able to live our lives. Why won’t the president help us do that?

As someone who’s written both windy law review articles and blog posts arguing for marriage equality for the past decade plus, I’m not going to disagree about the importance of “simple equality” which would make a great number of other issues disappear. (And it really is simple.) But read the Memorandum closely and you’ll see that the requested change goes far beyond marriage equality: The idea is to allow people to designate the person of their choice (either “on the spot” or through advance directives) to visit them in the hospital.

Yes, this will help those of us in same-sex relationships to avoid some of the horrors that our community has suffered, such as the inhumane and just inexplicable case that unfolded in Florida recently. But it will also help people in all kinds of relationships that the law doesn’t recognize, and never will. That respect for individual autonomy and decision-making in the most challenging circumstances is the great accomplishment of this Memorandum, and it shouldn’t go unacknowledged.

One more point: There’s a limit to what a President can accomplish all by himself, but these Executive Orders and Memoranda should be coming fast and furious. Obama could have issued this Memorandum immediately after taking office. While that would have been too late for Janice Langbehn and Lisa Pond in Florida, there have doubtless been many others since January 2009 who could have been at their partners’ side during those terrible final hours. What a needless shame.