Politics & Government
4:35 pm
Wed April 25, 2012

Amendment's Impact On Hospital Visits, Medical Decisions Debated

With the May 8th vote less than two weeks away, the battle over a proposed constitutional amendment banning gay marriage and civil unions is heating up. For our series examining the arguments over the amendment, Isaac-Davy Aronson looks at one of the claims made by its opponents.

Isaac-Davy Aronson: A flyer from the anti-amendment coalition Protect All NC Families claims the amendment "would interfere with protections for unmarried couples to visit one another in the hospital and to make emergency medical and financial decisions if one partner is incapacitated."

Tami Fitzgerald is head of the pro-amendment group Vote for Marriage NC.

Tami Fitzgerald: That's absolutely false. Same-sex partners will still have the same ability if the amendment passes to enter into end-of-life decisions, powers of attorney, any kind of hospital visitation agreements that they have now.

So who's right? Here's the thing: according to UNC law professor Maxine Eichner, unmarried couples don't currently have any specific protections in this area. Only family members are automatically granted the right to hospital visits or medical decisions. You can give those rights to other people, like a domestic partner, but you have to fill out paperwork in advance. The problem, says Eichner, is that very few people do that.

Maxine Eichner: Other states have moved to putting committed domestic partners on an automatic hospital visitation list. If the amendment were passed North Carolina could never do that, because that would be giving legal consequences or recognition to an unmarried partner relationship.

Still, we're talking about potential rights, not ones that currently exist. But let's say you have filled out that paperwork, giving your unmarried partner hospital visitation or medical decision-making rights. Under the amendment, could a hospital refuse to honor it? Tami Fitzgerald says no.

Tami Fitzgerald: The amendment makes that clear, again the second sentence says nothing in this section will interfere with private contract rights.

Not so fast, says Eichner. Agreements for hospital visitation rights are not contracts. So they're not explicitly protected by that language. But she says it's highly likely that hospitals would continue to honor those documents.