Equal Under the Law

Mikkael Sekeres, MD, MS
Director of the Leukemia Program at the Cleveland Clinic in Cleveland, Ohio

What 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 here 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.

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 special procedures or therapies awarded only to the few. Our 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.

The content of the Editor’s Corner is the opinion of the author and does not represent the official position of the American Society of Hematology unless so stated.

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