June 26, 2015
On June 26, 2015, the United States Supreme Court held that the Fourteenth Amendment requires all States to license same-sex marriages and to recognize same-sex marriages lawfully performed in other States. See Obergefell v. Hodges, 576 U.S. ___ (2015). At first glance, this landmark decision appears far removed from the day-to-day care provided in Ohio’s hospitals. But it is not. Beyond Obergefell’s obvious implications is the practical effect that it will have upon many Ohio statutes, including most notably those statutes that identify who can make end-of-life decisions for certain patients.
Consider an Ohio hospital that is caring for a terminally ill gay or lesbian patient. Assume this patient lacks the capacity to make his or her own healthcare decisions and has neither a guardian nor an advance directive. By statute, Ohio lists in descending order which adult family members can consent to any end-of-life decisions for this patient, such as withholding or withdrawing life-sustaining treatment. First and foremost is the patient’s “spouse”, followed by the patient’s child(ren), parents, sibling(s), and ending with his or her nearest relative.
Prior to Obergefell, Ohio was one of the majority of States that did not license or recognize same-sex marriage. In the above example, that meant that the Ohio hospital could not accept consent from the patient’s same-sex partner for any end-of-life decision, even if the patient and his or her partner were legally married in another State. After Obergefell, however, that patient’s same-sex spouse must be the first person the Ohio hospital approaches for consent on any end-of-life decision, and that same-sex spouse’s decision now binds the hospital despite any contrary feelings from other family members.
Although it may take years to appreciate (and litigate) the constitutional consequence of Obergefell, its impact is immediate. Mere hours after the United States Supreme Court’s decision, several counties in Ohio (including Lucas County) started issuing same-sex marriage licenses. Additionally, prior to Obergefell, eleven States had authorized same-sex marriage, and several of those States have been issuing valid same-sex marriage licenses for over ten years. That means important healthcare decision-making like the above example either are happening in an Ohio hospital right now or will be very soon.