The big news overnight is that President Obama has ordered hospitals to allow partners of gays and lesbians to visit and be allowed to make critical decisions.
Michael Schear, WaPo: “Obama extends hospital visitation rights to same-sex partners of gays”
President Obama mandated Thursday that nearly all hospitals extend visitation rights to the partners of gay men and lesbians and respect patients’ choices about who may make critical health-care decisions for them, perhaps the most significant step so far in his efforts to expand the rights of gay Americans.
The president directed the Department of Health and Human Services to prohibit discrimination in hospital visitation in a memo that was e-mailed to reporters Thursday night while he was at a fundraiser in Miami.
Administration officials and gay activists, who have been quietly working together on the issue, said the new rule will affect any hospital that receives Medicare or Medicaid funding, a move that covers the vast majority of the nation’s health-care institutions. Obama’s order will start a rule-making process at HHS that could take several months, officials said.
Hospitals often bar visitors who are not related to an incapacitated patient by blood or marriage, and gay rights activists say many do not respect same-sex couples’ efforts to designate a partner to make medical decisions for them if they are seriously ill or injured.
Sheryl Gay Stolberg, NYT: “Obama Widens Medical Rights for Same-Sex Partners”
The rules will take time to draft and put in place, and so Mr. Obama’s order will have no immediate effect. Even so, gay rights groups called it a major advance for the families of lesbians, gay men, bisexuals and transgender individuals.
“It’s a huge deal,” said David Smith, vice president of policy for the Human Rights Campaign, which worked with the White House to develop the memorandum, in an interview Thursday night. “Nearly every hospital in the country will now be required to provide hospital visitation rights to LGBT families. It’s an enormous step. In the absence of equal marriage rights in most jurisdictions, this step provides an essential right to LGBT families for a gay person or a lesbian person to spend time with their partner in a critical situation.”
CNN Wire Staff: “Obama orders hospital visitation rights for gays, lesbians”
resident Obama has asked the Department of Health and Human Services to establish a rule that would prevent hospitals from denying visitation privileges to gay and lesbian partners.
The president’s Thursday memo said, “There are few moments in our lives that call for greater compassion and companionship than when a loved one is admitted to the hospital. … Yet every day, all across America, patients are denied the kindnesses and caring of a loved one at their sides.”
Gay and lesbian Americans are “uniquely affected” by relatives-only policies at hospitals, Obama said, adding that they “are often barred from the bedsides of the partners with whom they may have spent decades of their lives — unable to be there for the person they love, and unable to act as a legal surrogate if their partner is incapacitated.”
[…]
Obama requested that the regulation make clear that any hospital receiving Medicare and Medicaid funding, which includes the vast majority of U.S. hospitals, must allow patients to decide who can visit them and prohibit discrimination based on a variety of characteristics, including sexual orientation and gender identity.
A PDF of Obama’s memo can be found here. What’s interesting about it is that, while all the attention is — rightly — being focused on gays and lesbians, the order is actually more far reaching.
Often, a widow or widower with no children is denied the support and comfort of a good friend. Members of religious orders are sometimes unable to choose someone other than an immediate family member to visit them and make medical decisions on their behalf.
[…]
Initiate appropriate rulemaking, pursuant to your authority under 42 U.S.C. 1395x and other relevant provisions of law, to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors. 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. The rulemaking should take into account the need for hospitals to restrict visitation in medically appropriate circumstances as well as the clinical decisions that medical professionals make about a patient’s care or treatment.
Now, it’s a long way from a directive memo to enforcing regulations. But it sounds like Obama is ordering a very broad right of hospital visitors to designate whomever they wish be allowed to visit and carry out medical decisions. This will have a disparate impact on homosexuals, of course, but it bypasses the “special rights” argument that opponents of gay rights typically cite. And they’d have a point in this case were Obama to privilege homosexual couples over non-married heterosexual couples.
If my interpretation of what Obama is doing is correct, then I wholeheartedly support the policy outcome. It’s long past due.
I am, however, a bit concerned about the implementation on at least two grounds.
First, I agree with AllahPundit that this is a matter for legislation — i.e., Congress — not executive order or regulation. This isn’t a clarifying instruction on enforcement of an existing law. It’s a rather broad law in and of itself. That’s beyond the reasonable scope of presidential power.
Second, it demonstrates the darkest fears of those of us who are suspicious of the expansion of government control over the healthcare system. Inevitably, the creation of even limited government programs provides a wedge to allow government to control the entirety of an enterprise. So, the existence of Medicaid gives government the right to dictate all manner of unrelated hospital policies — even for the vast majority of patients not on Medicaid. (It’s not just healthcare. The existence of school loan programs or the GI Bill gives the government the power to dictate all manner of unrelated educational policies.) It’s the proverbial camel’s nose under the tent. And, if the president can, on a whim, dictate something as mundane as hospital visitation policy, what can’t he dictate with regard to healthcare?
