Editor’s Corner
Equal Under the Law
W
HAT A REMARKABLE COUPLE OF MONTHS it has been for the law,
and for our patients.
On Friday, June 26, the highest court in the land ruled that
same-sex marriage is a right nationwide. The image that sticks in my
mind is The New York Times photograph taken amidst the celebration in front of the Supreme Court Building in which one woman,
Ray-Ban® sunglasses casually thrust atop her long brown hair, kisses
another woman on the cheek as that second woman seems to scream
in surprise and joy. A third woman looks over her shoulder at them
approvingly.
In writing for the majority in the decision, Justice Anthony Kennedy commented that marriage embodies “love, fidelity, devotion,
sacrifice, and family.” In the case of Obergefell vs. Hodges, the plaintiffs
sought “equal dignity in the eyes of the law.” The ruling was based
on a fundamental right to marriage and is framed in how loss of that
right affects children:
“Without the recognition, stability, and predictability marriage
offers … children suffer the stigma of knowing their families are
somehow lesser. They also suffer the significant material costs of
being raised by unmarried parents, relegated through no fault of
their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of
same-sex couples.”
Love, sacrifice, dignity, humiliation – words we don’t often hear from
the lips of the Supremes.
Just the previous day, the Supreme Court ruled that the federal
government can provide nationwide tax subsidies to help poor and
middle-class people buy health insurance, thus supporting a central
component of the Affordable Care Act in which marketplaces, or
exchanges, are created to allow shopping for health plans. Writing for
the majority, Chief Justice John Roberts commented:
“A fair reading of legislation demands a fair understanding of
the legislative plan. Congress passed the Affordable Care Act to
improve health insurance markets, not to destroy them. If at all
possible, we must interpret the Act in a way that is consistent with
the former, and avoids the latter.”
In the case of King vs. Burwell, the petitioners’ interpretation of the
law was rejected “because it would destabilize the individual insurance market in any state with a Federal Exchange and likely create the
very ‘death spirals’ that Congress designed the Act to avoid.”
Justice Roberts, who I’m reasonably sure did not leave the Pixar
movie Inside Out dabbing at his eyes with a tissue, doesn’t get quite as
descriptive as Justice Kennedy in his explanation for the ruling, but
still invokes notions of fairness, destruction, and death spirals.
What ties these rulings together, in my mind, is the increased
movement toward defining and recognizing rights of individuals.
In the first case, it is the right to marry, and the consequent (and
yet-to-be-hashed-out by the states) social and legal rights bestowed
on those who are wed. In the second case, it is a right to obtain health
insurance, which translates in short order to a fundamental right to
health care.
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ASH Clinical News
Why, as health-care providers, do these decisions affect us in
particular?
Similar to citizens of the United
States in general, our patients are
becoming increasingly empowered.
This is a good thing.
Medical care is a right, not
a privilege. As providers of that
right, we are workers in a service
industry – not gatekeepers of some
Mikkael A. Sekeres, MD, MS,
is director of the Leukemia
special procedures or therapies
Program at the Cleveland Clinic
awarded only to the few. Our
in Cleveland, OH.
patients have a right, not only to
be treated for health conditions,
but also to be treated similarly for
those conditions as anyone else in our care, regardless of sociodemographic background. It does not take a great leap to move from that
standard to the “Right to Try” bills that have been introduced in 20
states, allowing terminally ill patients access to experimental treatments. Before long, as we decide how to treat advanced cancers and
hematologic conditions, we may need to consult both the National
Cancer Institute’s PDQ resource or UpToDate and ClinicalTrials.gov
to search for both standard therapies and available clinical trials for
non-standard therapies.
Inherent in the same-sex marriage ruling is a core right not to be
discriminated against. Graduating from medical school, I was taught
that a person’s race, ethnic background, or sexual orientation was
part of the history and physical examination, and that I should put
it in the medical record. Thus, progress notes included references to
a “58-year-old African-American woman” or, under social history,
“Patient is a homosexual.”
It didn’t take long into my internship before I stopped adding
these descriptors. Though I felt comfortable about my own equipoise
with respect to equal treatment of my patients irrespective of their
backgrounds, I was not as sure about how others might interpret such
identifiers and how that would affect the care provided to my patients
– either consciously or subconsciously.
I also became increasingly uncertain that my words reflected
how my patients would describe themselves, and that I was including
descriptors equally. For every patient described as “homosexual,” do
we similarly describe patients as “heterosexual” in the social history
portion of our notes? The same-sex marriage ruling, to some extent,
eliminates that tendency to label someone as different, or at least
leaves it up to that person as to how he or she wants to define him or
herself.
Following the decision on same-sex marriage, President Obama
commented, “Today, we can say, in no uncertain terms, that we have
made our union a little more perfect.”
The same can be said of health care: In guaranteeing our patients
these rights, the law has made the practice of medicine, if not a little
more perfect, at least more egalitarian.
Mikkael Sekeres, MD, MS
Editor-in-Chief
August 2 015