He must have sensed that something was coming. I got too busy to post about it yesterday, but Maryland’s Republican governor has tried to make good on his promise to present his own bill after he vetoed gay rights bills that would have given some rights and protections to same sex couples. Since the Equality Maryland meeting earlier this week, I’ve been ruminating on a post about how he’d failed to do that, but now he’s proposed legislation.
Maryland Gov. Robert L. Ehrlich Jr. (R) proposed legislation yesterday that would make it easier for unmarried partners to make medical decisions for one another, calling it an alternative to a bill he vetoed last year that was supported by gay rights advocates.
Ehrlich’s bill would create a database of advance directives, a tool under existing Maryland law that allows people to designate any adult of their choosing to make health care decisions for them. Aides said the central registry, which could be accessed over the Internet by hospitals and other medical providers around the clock, would accomplish many of the same aims as the vetoed bill.
That legislation would have granted certain rights to couples who registered with the state as “life partners,” a designation that the governor argued last year “could lead to the erosion of the sanctity of traditional marriage.”
I think Ehrlich got it wrong once again, but there are a couple of things — one “pro” and one “con” — that come to mind here.
In the plus column, Ehrlich is clearly backtracking on what he said last year about the “sanctity of traditional marriage.” In fact, his language uses the very term he objected to a year ago.
In his veto message, Mr. Ehrlich, a Republican, said that although he was “sympathetic to the needs of mutually dependent couples,” he objected to the bill because it would have created a new legal category of “life partners” with some of the same rights as married couples.
“Instead of addressing the mechanics of expediting health care decisions,” Mr. Ehrlich said, the bill “could lead to the erosion of the sanctity of traditional marriage as already codified in Maryland law.”
The question is … why? Maybe he had some sense of which way the court decision would go, but if it was a position of strength for him in the first place why even mention offering a bill, let alone actually producing one when his fellow Republicans in the assembly are already talking about an amendment to put the kibosh on the whole works?
My guess is that maybe he had to do something, because political realities have made it difficult for him to take an unequivocal stand at least on protections and legal relationships that resemble marriage and offer some of the rights and protections afforded that status.
Maybe, just maybe — because of stories like Laurel Hester’s — the ball has actually moved a few yards down the field, and in our favor. Maybe there are now more people who can’t see why same-sex partners shouldn’t be allowed to see each other in the hospital, make medical decisions for each other, etc. Even if they’re not “there” yet on the marriage issue, they get that much. If a significant number of people didn’t “get it,” Ehrlich wouldn’t need to say a word. And if they get that much, maybe we get that much.
Now the “minus” column. There’s at least one thing wrong with Ehrlich’s proposal, and — ironically enough — I think it’s more likely to hurt straight folks more than gay couples.
[Equality Maryland Executive Director, Dan] Furmansky said Ehrlich’s approach would not guarantee as many rights as last year’s bill, which also covered decisions on funerals. And he questioned the wisdom of relying on advance directives rather than a new registry that would be well publicized in the gay community.
“Most people — gay, straight, from Venus, Mars or Pluto — don’t have advanced medical directives,” Furmansky said.
He’s right. Years ago I worked for an organization (now defunct) whose primary mission included educating people about advance directives and the importance of having one. Just to review, here’s what an advance directive is.
An advance directive tells your doctor what kind of care you would like to have if you become unable to make medical decisions (if you are in a coma, for example). …
A good advance directive describes the kind of treatment you would want depending on how sick you are. For example, the directives would describe what kind of care you want if you have an illness that you are unlikely to recover from, or if you are permanently unconscious. Advance directives usually tell your doctor that you don’t want certain kinds of treatment. However, they can also say that you want a certain treatment no matter how ill you are.
After the Schiavo case, I think more people understand the importance of advance directives, but only just a few. Even fewer probably understand the need to have a medical power of attorney in place.
What is a Medical Power of Attorney?
It is a document, signed by a competent adult, i.e., “principal,” designating a person that the principal trusts to make health care decisions on the principal’s behalf should the principal be unable to make such decisions. The individual chosen to act on the principal’s behalf is referred to as an “agent.”
The hubby and I had our adoption lawyer draw up those documents — one set for each of us — at the same time we were finalizing our son’s adoption, because we knew that those were protections we could not take for granted.
And even though it’s getting easier for people to get at least basic versions of those documents, I think that most heterosexual couples probably take for granted that they will have those protections if they need them. They can get them easily enough with a short visit to a justice o’ the peace, and where common law marriage applies all they have to do is present themselves as married for the required amount of time.
Given that, how many are likely to go to the trouble of having those documents created; especially if a good many aren’t going to think of them until they need them? At that point, they won’t be in Ehrlich’s proposed database, while gay couples may be more likely to have those documents and file them with the state, because they’re more likely to know that they won’t have those protections otherwise.
“A lot times when problems come up it is during an emergency where someone rushes to the hospital and may not have copies of the documents with them,” Senterfitt said. “It’s not only important to have them enacted, it’s important to have them with you when you need them.”
But even when you have the documents, there is no guarantee a hospital will follow your directives.
And, believe it or not, one case illustrating just that point happened right here in Maryland.
In October 2000, Bill Flanigan’s longtime partner, Robert Daniel, was admitted to the University of Maryland Medical System’s Shock Trauma Center in Baltimore. He was suffering complications from AIDS. The men, who resided in California, were on their way to visit Flanigan’s sister when Daniel became seriously ill.
When Flanigan asked to see his partner and confer with his doctors, the hospital staff allegedly told him that only family members were allowed to do so, and he was not what they considered family, according to Flanigan.
In California, the two men were signed up with that state’s domestic partnership registry. Flanigan also had durable power of attorney that gave him authority to express Daniel’s wishes for medical treatment, including Daniel’s request not to have any life-sustaining procedures performed.
But neither of these facts allegedly made any difference.
Flanigan was finally allowed to see Daniel once Daniel’s mother and other family members arrived, he says. By then, Daniel had a breathing tube inserted, which contravened his wish to not have any life-sustaining procedures, Flanigan charges. His eyes were also taped closed, he says.
Daniel died without having a chance to say goodbye to his partner.
I wouldn’t expect Ehrlich (or most of his staff, for that matter) to know much about it. But the information is available, on the slim chance that any of them are reading this and care to look.
Maybe Ehrlich proposal (page four of this PDF) is a “good faith effort,” as Furmansky classified it. I think it’s just an attempt to look like less of an ogre on the issue. But even if you give him the benefit of the doubt it’s an uninformed proposal, and amounts to a non-solution compared to the bills Ehrlich vetoed last year. When it comes to getting it right on this issue, he’s 0 for 2.