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On rare occasions, a news development forcefully reminds us of what it means to be deprived of a basic human right that the majority of citizens in democratic societies take for granted. Such an event was President Obama’s executive order last week, designed to ensure that same-sex partners will be able to visit their loved ones in the hospital and make medical decisions on their behalf if the partner has assigned them the legal right to do so. The order was inspired, in part, by the case of Janice Langbehn, who, when Lisa Pond, her partner of 18 years, was taken to the hospital after a brain aneurysm–and even though Langbehn possessed power of attorney–was deprived by a Florida hospital of the right to sit by her partner’s side as her life ebbed away.
I missed the story of what happened to Langbehn and Pond when it was first reported in The New York Times last year. The couple lived in the state of Washington and had four adopted children; Pond collapsed from a brain aneurysm during a family vacation in Florida. When Pond was taken to the trauma center at Jackson Memorial Hospital in Miami–and even though Langbehn had the legal papers proving that she possessed Pond’s power of attorney–she and the children were denied the right to visit. Eight hours later, Pond died alone. Exactly how this happened is somewhat mysterious, since Jackson Memorial has no policy against visits by same-sex partners. Yet when Langbehn sued after her partner’s death, the hospital fought and won, taking the position that no trauma center should be legally required to grant visiting rights to anyone. My guess: a callous, homosexual-hating employee decided to make trouble for Langbehn on general principle, and the hospital was trying to cover up for the insensitivity of its staffer by asserting some general right to refuse visitation.
In fact, as anyone who has ever accompanied a family member or, for that matter, a friend to an emergency room knows, urban trauma centers are generally happy to have someone on hand who knows the patient. People die all the time–or are on the verge of death–in these centers and, in my experience, the staff generally goes out of its way to allow family members (or anyone who has accompanied the patient) to say goodbye. I can imagine the lawsuit that would be slapped on any hospital whose administrators had kept a wife from her dying (male) husband or a husband from his dying (female) wife. And that is why Obama is directing the Secretary of Health and Human Services to draw up rules ensuring that, whether a patient is part of a gay couple or a straight unmarried couple–or not part of a couple at all–hospitals must respect the patient’s choices regarding the power to make health care decisions.
Some on the left have pooh-poohed this move as a measure that costs Obama nothing and is intended to defuse pressure for gay marriage and an end to the “don’t ask, don’t tell” policy in the military. They are wrong. In the first place, prohibiting discrimination against same-sex couples (or again, against unmarried heterosexual couples) in hospitals receiving Medicare and Medicaid is something that can be done by executive order. Ending “don’t ask, don’t tell” requires an act of Congress. Second, I can think of nothing that makes a stronger case for gay marriage (though this is certainly not Obama’s intent) than the fact that an executive order needs to be issued to prevent what happened at Jackson Memorial from happening again to someone else. Langbehn and Pond had done everything possible to safeguard their legal rights. They had all the papers you are told you need to have if you don’t have the automatic rights of a spouse. And yet Lisa Pond died alone because some bureaucrat, infused with meanness and faith in the Book of Leviticus, decided to exercise petty power in this situation.
Given the fact that virtually all opposition to gay rights is religiously based, you can be sure that this hospital functionary thought he or she was doing the will of God.
Peter Sprigg, senior fellow at the far-right Family Research Council, said his group does not object to allowing gays to visit their partners or to make medical decisions for them (how generous!) but added that the presidential order “undermines the definition of marriage” and offers another example of “a big government takeover of even the smallest details of the nation’s health care system.” Ah, those “small” details! I cannot imagine anything bigger than being deprived of the right to comfort the person I had loved for decades in his final weeks, days or hours on earth. Every taxpayer funds Medicare and Medicaid. And if some hospital employees need to be told that they are legally required to treat all taxpayers decently, then that is what they must be told. It speaks well for Obama as a human being that he took the time to phone Langbehn after he made the announcement of his executive order.
There is another important aspect of this story–one insufficiently emphasized by the media–for anyone who is not legally married or who wishes to assign a medical power of attorney to someone other than an immediate family member. Unless you have drawn up a health care proxy or power of attorney, depending on your state’s law, and assigned decision-making power to a specific person, your next of kin will always have priority when it comes to making health care decisions. This should be a matter of utmost importance to aging baby boomers, because many more are either divorced or childless than was the case in previous generations. All public policy regarding end-of-life issues–on everything from estates to end-of-life care decisions–is heavily influenced by preferential treatment for blood relatives. Gays couples tend to be more aware of this than straight men and women because they know that their partners have no legal standing in many states unless they have done the paperwork.
Only 30 percent of Americans have living wills that specify their wishes about end-of-life care; an even smaller number have special health care proxies that are often required. This is a dangerous business for all who do not have a spouse or a child in perfect agreement with their wishes about end of life care. If, for instance, your closest living relative is an adult child who has very different attitudes about end-of-life issues than you do, you will need to assign power over medical decisions to someone else. If you are single and have no children, you will need to take the same measures. These issues are not solely matters of gay rights but of human rights.
Appeals to traditional “family values” will not meet the needs of the millions of baby boomers who do not have a living spouse or children. The idea that everyone has a devoted and conventional family–or that family members can always be counted on to act in the best interest of their loved ones–is ridiculous. It always was, or there wouldn’t be so many 19th-century novels about family battles centering around the estate of a dying parent. The plight of gay couples whose lives do not fit the conventional legal guidelines is part of a much larger problem involving assumptions that privilege marriage and blood relationships above everything else.
The attention now being paid to medical rights of gay couples ought to be a wakeup call for all Americans to exercise more individual initiative and take responsibility for ensuring, insofar as possible, that their wishes about end-of-life care will be followed. By 2030, more than 20 percent of Americans will be over 65. It is time for boomers to grow up and face the fact that (despite all of the cosmetics ads and pscyhobabble about “defying age”) we are entering the final decades of our lives. Planning for the last stage of life is not only a human right but a human responsibility–especially for those of us who don’t believe that God is looking after us and deciding our fate.