Barack Obama and Hospital Visitation Rights

We all would appreciate a hospital deferring to a loved and trusted person, allowing them to visit in time of suffering and to even make decisions on our behalf.


Barack Obama looks like someone who sees the issue of hospital visitation rights as part of a greater problem of designating who you trust no matter who that person might be in legal relationship to you.

Whlle touted as a move specifically to bestow visitation rights to same-sex couples, the actual memo lists many types of arrangements...

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. Also uniquely affected are gay and lesbian Americans who 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.

And what Obama is talking about is not recognizing DP's or CU's specifically either, but the ability for those hospitalized to delegate such decisions as they wish, as in the advanced directive…

For all of these Americans, the failure to have their wishes respected concerning who may visit them or make medical decisions on their behalf has real consequences.
[...to remedy Barry Obama will...]
Ensure that all hospitals participating in Medicare or Medicaid are in full compliance with regulations, codified at 42 CFR 482.13 and 42 CFR 489.102(a), promulgated to guarantee that all patients’ advance directives, such as durable powers of attorney and health care proxies, are respected, and that patients’ representatives otherwise have the right to make informed decisions regarding patients’ care.

It also explicitly states in regards to the hospital visitation as a right…

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Also note it is an order only regarding the presidential oversight of medicare and medicaid.

Marriage, or kinship in general is at best an indirect assumption on who one might want to make decisions for them or visit them in the hospital. There is no better or more direct way to know the will of the patient than an Advanced Directive they wrote.

In this move I appreciate how Obama is addressing the heart of the problem. No doubt he's been pressured by arguments which state that only neutering marriage can address the visitation rights that homosexual couples might desire. For an example of such an argument, see this article by Ampersand of Alas a Blog.

As with most situations in discussing policies, the problem about them is not what is said that is true, but what is true that remains unsaid. Such arguments are strained constructions at best in avoiding the obvious facts that would lead to a more circumspect understanding and prescribed solution as Obama found.

In Ampersand's example, you can see two omissions are as follows. The first is the narrow focus on homosexual couples, avoiding the examples that Obama noted above and beyond homosexual couples. He lists a number of situations where couples were not given visitation or decision rights for the other -- only for homosexual couples.

The second is the prioritization of prescribed solution which prioritizes a more direct solution with a more indirect one. Even though Advanced Directives more directly, and more surely address the needs of a patient giving a hospital a clear protection in court from litigation in behalf of the patient for following them, Ampersand says marriage is the solution.


All the more troubling is how Ampersand's examples show specifically the same problem that he engaged in, namely putting marriage above AD's. When he notes stories where AD's were ignored and marriage was expected instead, the tragedy in the stories is just that -- they ignored the direct will of the patient for their own priorities in policy towards marriage.

La Lubu, over at Family Scholars Blog, also participating in this discussion shows another situation (not between homosexual couples) where this misprioritization causes issues.

Blues singer Etta James has multiple health problems, and knowing her conditions processed an advance directive giving her eldest son power of attorney in the event she became incapable. That time is now. However—her husband is challenging this in court. If you’re familiar with Ms. James’ life story (she has always been very open in the press about her tumultuous life, and wrote an autobiography, “Rage to Survive”), you’re probably aware that she very pointedly has kept all her accounts and property in her name only. She loves her husband, but also recognized that he (as she) has continued to struggle with substance abuse.

They have also had periods of estrangement in their marriage. Meanwhile, she has always been close to both of her sons; they are also musicians and are in her band. Now, you might think that a power of attorney, processed and handled by an actual attorney in the state (not a generic document downloaded from the internet) would put the matter to rest, right? Not so. The primacy of marriage is such that her husband was able to challenge it in court. He is requesting that the court declare all her property and accounts as joint accounts so he can pay for her needs.

 Now, La Lubu uses this example the same way Amp did, to claim that AD's are not sufficient and anyone any same sex couple who needs visitation rights should be married instead. That La Lubu suffers from the same short sighted emulation of the problem they are complaining about shows it isn't a coincidence. That non-coincidence is an anomaly cause by looking at the problem as one of identity politics (again shared by the hospital and Amp and La Lubu alike). But that is another article.