An end-of-session revision to a state Assembly bill governing medical decision-making for patients too incapacitated to make their own choices has successfully addressed the concerns of some Democrats—including Deborah Glick and Daniel O’Donnell, two out lesbian and gay Manhattanites—about the measure’s impact on the rights of domestic partners and on New York’s commitment to reproductive choice.
At the same time, the New York State Catholic Conference, which represents the state’s bishops in Albany, has come off the bench, shedding its official policy of neutrality on the measure and now actively opposing its passage. That opposition could stall the bill in the Republican-led state Senate.
Controversy about the measure burst into full public view early in May, but reflected disagreements among the majority Assembly Democrats dating to the end of the session last year. The effort to pass such a bill in New York in fact has languished for the past 13 years, as Democrats have struggled to mollify concerns raised, primarily by the Catholic Conference, over issues including end-of-life decisions and the status of pregnant women unable to make their own medical decisions.
When the measure first surfaced in the ‘90s, the only recognition of gay and lesbian partners of seriously ill New Yorkers was a reference to “friends,” who were listed well down the priority list of those in a position to make decisions on their behalf. As the bill became a more realistic possibility when progress was achieved in addressing the concerns of Catholics, advocates for gay and lesbian couples pressed Dick Gottfried, a Manhattan Democrat who chairs the health committee and has long been an unqualified supporter of the gay and lesbian community, to specifically enumerate domestic partners as valid decision-makers and place them at the top of the list, equal to spouses.
Instead, Gottfried last year chose to do away with any specification of who should make decisions on behalf of impaired patients, and set out criteria that would be applied. Gottfried argued that despite the fact that domestic partners were not specifically mentioned in the bill—nor are spouses or any other relations—their rights were would protected by the measure’s language. On that point, Gottfried had important LGBT allies, including Nan Hunter, a Brooklyn College law professor who has had a distinguished career as a scholar and advocate—including a stint in the Health and Human Services Department during the Clinton administration—on issues such as better health care, adequate AIDS treatment, and gay and lesbian rights.
Glick and O’Donnell were among those who felt that the language fell short of ensuring the rights of lesbian and gay partners, noting that recent legislation on bereavement leave, hospital visitation, and control of remains specifically guarantees those rights.
The two assemblymembers and other Democrats also opposed a concession Gottfried made to the Catholic Conference that those responsible for medical decisions should “consider the impact of treatment decisions on the fetus.” In a May interview with Gay City News, Glick argued that the language about the fetus could start the state on the slippery slope toward recognizing the rights of a fetus separately from a woman’s prerogative and lead to challenges to the woman’s wishes or her partner’s decisions.
Despite concerns about the fetus language, the New York Civil Liberties Union, the chief advocate for the bill and a longtime defender of choice, argued that it was innocuous. Leading pro-choice groups were neutral on the bill. Gottfried said the reason for that was that “no choice issues are raised by the bill,” though a spokesman for NARAL Pro-Choice did not say that specifically.
A May 15 column by Bill Hammond in the Daily News charged that Gottfried’s bill “is being held hostage by pro-choice and gay rights purists in the Assembly.” In response, Glick responded that she and O’Donnell had been singled out among many Democrats with concerns, noting that the Assembly Democratic Conference last June failed to come to consensus on the Gottfried language.
“Notice, he doesn’t go after choice, he goes after Glick and O’Donnell,” Glick said. “I think it is homophobic.”
O’Donnell charged that Gottfried was behind the hit in the press.
“Last Wednesday, the coalition met in Gottfried’s office and I know that because there was a sign on his door and on Friday Hammond first called me,” he said. “You do the math.”
“I am not interested in engaging in that kind of dispute,” Gottfried told Gay City News at the time, but last week when Glick and other Democrats looking to amend the bill arrived in his office to negotiate, the health committee chairman told them the changes they sought had already been made.
Gottfried this week said that without removal of the pregnancy patient clause, “the Assembly was not going to move on this bill this year.” The shift back to a priority list—one that now prioritizes domestic partners—came at the urging of the Empire State Pride Agenda and Gay Men’s Health Crisis, he said.
For his part, Hammond in a letter to the editor printed in Gay City News unequivocally denied the charge of homophobia, pointing out, among other things, that he is a supporter of same-sex marriage rights.
At the time the Hammond-Glick/O’Donnell firefight broke out, the Pride Agenda would only say that it was working with legislators on the bill. This week, Ross Levi, ESPA’s director of public policy, explained that the group had long been evaluating the bill’s language. Though it was comfortable with Gottfried’s approach to determining who would make medical decisions, it advised the bill’s advocates that specifically prioritizing the standing of domestic partners with spouses was preferable.
Interestingly, where ESPA parted company with Gottfried was on the fetus language. After consultations with Assembly Democrats opposed to that language, the group became convinced that their concerns were valid.
Now that Gottfried has revised the bill, Glick, O’Donnell, and ESPA are on board, and on Tuesday the bill won committee approval in the Assembly, with a final floor vote expected imminently.
None of them, including Gottfried, however, is voicing confidence about the bill’s prospects in the Senate. The Catholic Conference memorandum of opposition surfaced on Monday and said the removal of the fetus language was unacceptable. The memorandum also noted that domestic partners had been given equal standing with spouses “at a time when the state’s highest court is considering closely related matters,” an allusion to last week’s oral arguments in four same-sex marriage lawsuits.
The Senate Republicans are generally deferential to the concerns of the Catholic Conference, but as of Tuesday, James Seward, who sponsors the bill that mirrors the unamended Gottfried measure, had no comment on the memorandum of opposition and may not yet have seen it, according to his spokesman Duncan S. Davie.
“The next seven days will tell the story,” said the Pride Agenda’s Levi, since the Legislature winds up its business by the end of June each year. His group put the measure at the top of its most recent Action Alert to its members.
Glick is still angry about the effort required to make what she sees as necessary changes to the legislation, and said the last-minute Assembly revision could spell doom for this year in the Senate.
“It could have changed earlier,” she said. “Raising it now with the Senate, at the end of the session, now down to 10 days—that is unfortunate. All of the energy that was directed toward proving we were wrong could have been directed to a more appropriate venue.”
Levi was less willing to fault the process.
“This has been a 12 or 14 year struggle,” he said. “It’s always nice to have more time to advocate for your position. I don’t think that this issue is coming down to a matter of days and weeks.”
Asked his view of how the timing of the bill’s revisions influences the prospects in the Senate, Gottfried said, “I think the issue would have been the same whenever we amended it, and in the nature of things I think it would have come to a head at this point anyway.”