Obama’s Ruling on Hospital Visitation Rights Could Have Unexpected Consequences

Published May 31, 2016

By a directive to Secretary of Health and Human Services Kathleen Sebelius, President Obama recently ordered most American hospitals to grant the same visitation rights to homosexual partners that they do to married heterosexual couples. The ruling applies to all hospitals receiving Medicare or Medicaid money.

As it happens, I agree hospitals should have been treating same-sex couples the same as others in this regard a long time ago. It’s a simple matter of recognizing these are consenting adults and leaving them to arrange their affairs their own way. But there’s something wrong with this picture.

Method Raises Questions

Consider: The President of the United States, without any Congressional authorization, is unilaterally announcing a policy that will affect the day-to-day, ground-level operations of every hospital in the nation.

The federal government is thus dictating national policy on a social issue having nothing to do with any expenditure of federal money or any federal program, simply by virtue of the leverage created by the financial dependence of hospitals on the Medicare and Medicaid programs.

This vividly illustrates exactly what conservatives have long warned about with regard to the expansion of federal programs in general and health care in particular, which touches on so many of the most intimate relationships and events in life: Once Uncle Sam is footing so much of the bill that people can’t say no to him, he’ll start deciding to make federal rules about everything.

Pervasive Federal Regulation

Sometimes, pervasive federal regulation means taking a position on a divisive social issue is unavoidable. Obama’s health care bill, for example, essentially rendered neutrality on abortion impossible—you either have an enforceable ban on the money going to fund abortions, with the collateral consequence of reducing insurance coverage for abortions generally (as part of the broader phenomenon of reducing the available pool of insurance coverage that’s not under the federal thumb), or you do not.

George W. Bush’s decision in 2001 to begin federal funding for embryonic stem cell research created the same problem: Either Bush would fund research into stem cell lines from destroyed embryos or not, or (as it happened) he would have to draw some unsatisfactory middle-ground position between those two poles.

Nationalizing Social Policy

There’s another hazard set in place here. This is a clear example of Uncle Sam using the power of the federal purse to nationalize all sorts of decisions which have no business being subjects of federal mandates.

There’s no rational connection to any expenditure of federal expenditure going on here. Obama clearly figures that because Medicare and Medicaid money is too much for hospitals or states to turn away, he has them over a barrel and can dictate terms on unrelated matters.

The current administration has in fact already used strings attached to federal money to impose controls on the states by restricting the ability of governors to present any competing model of governance, as we’ve seen with the economic stimulus and health care overhaul bills.

Both Parties Use Method

Lest Democrats complain Republicans do this too, yes, that’s part of the problem. You leave power sitting around, it’s gonna get used.

Nanny-state Republicans established the legal precedent for this kind of mischief when Ronald Reagan’s Transportation Secretary, Elizabeth Dole, began to use federal highway funds as leverage to compel states to adopt a 55 mph speed limit.

During the George W. Bush administration, No Child Left Behind used federal education dollars to put more strings on local schools. And the Solomon Amendment, passed in 1996, requires universities accepting federal funds to let the ROTC on campus—something many colleges have refused to do, ostensibly on grounds of protesting Don’t Ask, Don’t Tell, but in some cases because of a general antipathy toward the military.

The Solomon Amendment, which passed muster at the Supreme Court, at least served a compelling interest of the federal government in possibly encouraging military recruitment, but it is yet another example of how universities’ dependence on federal money leaves them vulnerable to dictates from Washington. Now hospitals are experiencing a similar challenge.

Turnabout Possible

How would liberals like it—they may live to find out—if a future GOP president used the same authority to ban federally funded hospitals (effectively all of them) from disconnecting feeding tubes, regardless of contrary hospital policies or state laws?

The Terri Schiavo contretemps in Congress and the courts could thus have been resolved by a single stroke of the President’s pen. Or suppose a GOP President imposed restrictions or disclosure requirements on health care providers performing abortions? Or a ban, for that matter, on visitation rights for same-sex couples?

In some cases the Left could undoubtedly rely on having federal judges’ policy preferences on these issues trump those of the executive branch, but the resolution of the drinking age and Solomon Amendment cases underscores the fact that they would not always succeed with that strategy.

Everywhere you look, the Obama administration is extending the tentacles of federal spending and regulation further into every imaginable sort of economic endeavor, from automakers to school loans to financial services of every kind.  One day the Left may awaken to realize the Right is running Washington again and there’s nowhere left to hide from a government they no longer control.

Dan McLaughlin ([email protected]) is an attorney in New York City.