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April 15, 2010

Obama Orders Hospitals to Give Visitation Rights to Gay Couples

Didn't we just spend ten months altering the provision of healthcare in this country? This time he isn't going to muck about waiting for Congress.

Earlier today, he issued a memorandum to DHHS, ordering the agency to set new requirements for U.S. hospitals that receive Medicare or Medicaid funding (which is almost all of them).

The hospitals must respect a patient's wishes regarding who is allowed to visit, including in advance directives when the patient may be incapable of designating visitors. This applies to all patient's wishes, not just regarding gays. Also, the hospitals may not discriminate in their visitation policies on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability.

The stealth provision that has gone unremarked in the title of the memo and the media coverage so far is that hospitals must also comply with advance directives giving non-family individuals the right to make decisions about patient care.

That's the real coup for gays in this order. There have only been, to my knowledge anyway, a few isolated incidents of hospitals denying visitation to gays who have a hospitalized spouse or partner. I'm glad the President is acting to end it, at least in hospitals that take federal funds. There's little reason not to fix a bad thing even if it's scarce, particularly when it can be fixed with little cost. (Support for allowing gay couple visitation rights is somewhere around 90% and Obama needed to throw a bone to the permanently pissed off Gay Left.)

But the real drama is when more than one person claims to have the right to make medical decisions for an incapacitated patient. What's the hospital to do when the parents want one thing but the gay spouse or partner wants something else? What about in a state like Virginia which bans legal recognition of statuses that "approximate the design, qualities, significance, or effects of marriage"? Go with the parents or the gay spouse/partner?

Obama's order will end a great deal of uncertainty, both for gay spouses, who already have to spend more money than straight spouses to get the same rights, and for hospitals, who have to face the threat of legal action if they guess wrong about who gets to make medical decisions for incapacitated patients.

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posted by Gabriel Malor at 10:52 PM

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