January 04, 2010
When Did the AALS Become an Issue Advocacy Organization, or Does the AALS Really Think New Orleans Health Care Workers are Bigots?
Posted by Trey Drury

This statement, sent to all annual meeting attendees, alerts those "who are either unmarried but have a partner, married but in a marriage that would not be recognized by Louisiana Law, or who have a family member in one of these categories" about potential trouble at the annual meeting.  Apparently, the concern is over "hospital personnel who will not allow same sex partners visitation accorded family members, or who may even attempt to make the exercise of a health care power of attorney difficult." 

This is a serious concern, and one that should not be taken lightly.  So, what is going on here?

Option 1 - New Orleans health care workers are discriminating against same sex couples and others living outside of some traditional conception of marriage.  This conclusion is implied by the AALS letter.  However, I have not been able to track down any evidence that such discrimination is in fact occurring.  I've spoken to people in the medical and legal community in New Orleans who ought to be aware of these things.  I e-mailed Susan Westerberg Prager (the author of the statement) on Friday night but have not heard back.  I've done the typical internet searches.  Nothing.  In fact, even the statement itself does not claim to be aware of any instance of discrimination in New Orleans, much less a risk that going to New Orleans increases the chance of being discriminated against (if it is just a societal risk, and not one increased by traveling to New Orleans, there is no need for the warning).  It does not seem that Option 1 explains the statement.

Option 2 - The AALS is extremely risk averse and is protecting its members against hardship, no matter how remote.  Even if this discrimination might not be happening, it could happen.  Out of an abundance of caution, maybe the AALS just wants its members to be prepared.  The AALS may be genuinely concerned here, even though the risk seems very remote.  In fact, a number of highly unlikely possibilities would need to converge for this statement to to be useful at all, to impact even one conference goer.  This sort of discrimination occurs how often in New Orleans?  Once this month?  Once this year?  Once in the last five years?  (and, whatever the frequency, is this more often than elsewhere?)  How likely is it that one of the AALS conference-goers will require hospitalization?  That the hospitilization would require the use of a medical power of attorney?  That this particular conference goer is in a relationship where the discrimination would be an issue?  We need one of our empiricists to figure out the likelihood of this combination coming to pass, but it appears exceedingly small.

Also, severe risk aversion does not explain why the AALS chose this particular issue to warn us all about.  There was a security breach at Newark airport yesterday, and someone was caught on a plane with explosives within the last two weeks.  Where is our statement about airline safety?  Unfortunately, New Orleans has a stubbornly high crime rate.  Where is the statement about personal safety?  If the AALS is indeed hyper-risk averse, it is inconsistently so.

Option 3 - The Hierarchy of the AALS is upset that Louisiana has passed a Defense of Marriage Act.  This explanation seems most plausible to me.  Why do I believe that this issue advocacy is the point of the AALS letter?  First, the opening line of the statement acknowledges that the AALS put these "precautionary measures" in place because Louisiana passed a defense of marriage law.  Then, the message goes on to note that the reports of this discrimination occur "[e]ven in states that do not have such a law," and does not discuss whether more instances of discrimination occur in jurisdictions with such a law, or whether any of these reports come from New Orleans.  In addition, the AALS has already expressed its concerns to the leadership of Tulane Medical Center, who confirmed that they do not discriminate in this manner.  Finally, it appears as if the AALS has a history of this kind of thing.   

I want to be clear - I do not have any interest in defending the substance of Louisiana's defense of marriage law.  Totally apart from that debate, I have independent problems with the AALS statement.  First, I think the AALS message is unfairly insulting to health care workers in New Orleans.  Second, I am generally uncomfortable with AALS advocating on political and social issues, particularly ones where its membership has expressed divergent views.  But, if the AALS and its membership want to lobby for gay marriage or any other cause, it should do so directly instead of issuing this sort of passive-aggressive statement. 

Finally, I am concerned that the AALS is merely trying to appease a faction of its membership who feel strongly about this issue.  This weaselly middle ground is the most distressing scenario.  AALS members may, and I'm sure some do, object to the defense on marriage law on principled grounds.  They may choose to avoid jurisdictions with such a statute, and may properly lobby this and other organizations to take similar action.  Instead of taking similarly principled action (in either direction), the AALS seems to have taken the expedient route - pressing on with its meeting, but insulting its hosts to extract a pound of flesh that it hopes will quiet those complaining.  I hope this is not the case.

I believe the AALS should either issue an apology to New Orleans health care workers or produce data demonstrating a heightened risk of discrimination at their hands.  I'm not holding my breath.

Full disclosure - I am married to a physician in New Orleans.  I know and admire many local health care workers and have a great deal of respect for their talents and professionalism.

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