Early in 1978, I hung out a shingle and began practicing law with three friends on Castro Street in San Francisco. It was before HIV turned all our lives upside down, but we soon realized that hospital ICU visitation policies were a big problem for the LGBT community. So many lesbians and gay men in those days had come to San Francisco because life elsewhere was impossible. They'd built families because they were rejected by their "natural" families. But most medical facilities didn't recognize those families.
My law partners and I sat down and created a very official-sounding document called a "Hospital Visit Authorization." It purported to direct the hospital to let a person named by the patient visit if visiting were restricted. We also tried to create a medical power of attorney so partners could make medical decisions. We didn't have any legal authority for any of this. We just made the stuff up. And more times than I care to remember, I bluffed my way through confrontational phone calls with hospital administrators and lawyers. I'm pretty proud of the fact that most of the time I got them to back down.
But in the ensuing 30 years (ok, 30-plus years), the problem didn't go away. In the first Domestic Partnership laws, hospital visiting was something we always included. Just three years ago, a story we used in a video about a man whose partner died alone because of a hospital visitation policy broke my heart.
Maybe that history is why I got a genuine all-American lump in my throat when I read President Obama's memo to Kathleen Sebelius on Hospital Patients yesterday. I'm still a geeky lawyer at heart, so I loved the substance of the memo. The president told Sebelius to use her power to make rules for hospitals that get Medicaid and Medicare — virtually all hospitals. So it isn't a classic regulation; if you don't want to comply, you don't have to. You just can't get paid by Medicare if you don't. Cute. Moreover, by doing that, the President was using the federal power to spend — the broadest of the federal government's powers
But it was the President's explanation of why we needed the new policy that got me misty:
There are few moments in our lives that call for greater compassion and companionship than when a loved one is admitted to the hospital. In these hours of need and moments of pain and anxiety, all of us would hope to have a hand to hold, a shoulder on which to lean — a loved one to be there for us, as we would be there for them.
Yes. Exactly. He went on:
Yet every day, all across America, patients are denied the kindnesses and caring of a loved one at their sides — whether in a sudden medical emergency or a prolonged hospital stay. ...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.
I felt like the man had been there with me in the early 80s when we were trying to get partners into ICUs with people who had GRIDS (the first name for what we now call AIDS). Did I mind that he talked about straight widows or nuns? Not at all. I want him not just to issue orders but to make Americans understand. And this memo works hard to do that.
As I walked home after reading the memo, I realized that after this order, those "Hospital Visit Authorizations" and local domestic partnership laws will soon not just be unnecessary. They'll soon be forgotten, not even a historical footnote. So I went home and poured myself a small glass of old whiskey (ok, not that small) to celebrate the irrelevance of something I worked hard on when I was a young lawyer. How sweet it is to become beside the point.