Where do we draw a line in giving medical treatment to inmates? If they are diabetic, do we give them insulin? If they have cancer, do we give them chemotherapy? If they are diagnosed by doctors and there is a medically necessary treatment, do we withhold treatment?
I wish that this case didn’t center around a convicted murderer, but treatment shouldn’t be based on what crime did a person commit.
Instead of complaining about this case, we all should work to get gender confirming surgery covered by all insurance.
Barney Frank Backing Appeal of Ruling Requiring Sex-Reassignment Surgery for Transgender InmateMany people have said that their insurance doesn’t cover gender confirming surgery and that she shouldn’t get surgery. I also wish that I could get my surgery paid for by my insurance, but it doesn’t. I also realize that my former employee isn’t covered by the Eighth Amendment and we shouldn’t draw the line that this treatment is OK and that treatment is not. That we should go by what the medical professionals say is medically necessary.
MetroWeekly
Posted by Justin Snow
October 1, 2012
Out gay Rep. Barney Frank (D-Mass.) said today that he agrees with a decision by Massachusetts Gov. Deval Patrick (D) last week to appeal a federal court's September ruling that the state must pay for sex-reassignment surgery for a transgender prison inmate.
The U.S. District Court ruled that Michelle Kosilek, who is serving a life sentence without parole in a prison for males after strangling her wife to death in 1990, is entitled to the surgery under the Eighth Amendment protecting her from cruel and unusual punishment.
I wish that this case didn’t center around a convicted murderer, but treatment shouldn’t be based on what crime did a person commit.
Instead of complaining about this case, we all should work to get gender confirming surgery covered by all insurance.
Because where are we going to draw the line? We treat 2nd murders for cancer, but not a convict 1st degree felons?
ReplyDeleteAny line will be arbitrary and the 18th Amendment does not allow arbitrary decisions... it says equal treatment.
I think you mean the 14th Amendment! :-) (The 18th was prohibition.) Does the 14th apply to prisoners? Provide them with the rights they give up (voting, etc)?
ReplyDeleteI'd say that the line is drawn when the person commits the crime. Prisoners are never on any list for organ transplants; they are treated for cancer, etc - but only to a point. Extreme efforts are not taken to save their lives, for instance. The same is true in the law-abiding world as well. You can't, for instance, be denied coverage for a pre-existing condition, nor can you be denied *reasonable* care for an illness. But your insurance company can deny payment for "extreme" care - and they can define what "extreme care" is! I've argued, quite vociferously, that what Kosilek is seeking is "perfect" medical care. The misapplied 8th, nor the 14th, guarantee anyone perfect medical care!
Also, providing the operation give Kosilek the achievement of what she killed Cheryl Kosilek to obtain. That just strikes me as morally wrong!
"Kill wife because the conversation about the wanted sex change might be awkward, still get sex change."
Anyway, the 14th:
"...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
So, as long as the denial of medical care has received adequate legal review, (theoretically) there isn't a problem. And I argue that with Kosilek, she is receiving "more than equal protection". The law-abiding citizen can't get the state to pay for any medical care until they retire - and sex changes aren't (currently?) covered by Medicare.
The crime cannot, I think, be ignored. It's why the person is in jail, and it must be considered. Sometimes it isn't applicable, sometimes it is. it's not a black and white issue, that's for certain!
No, we are both wrong, it is the 8th Amendment, as the article states. Sorry, but I was away all weekend.
ReplyDeleteThe Supreme Court has ruled numerous times that medically necessary treatment. As the article to withhold treatment to any prisoner has been ruled by the Supreme Court as "cruel and usual punishment."
J.W. Gamble and the Prison Farm
J.W. Gamble was working on a Texas prison farm when a bail of hay fell and injured his back. Mr. Gamble sued the chief prison doctor, the warden and W.J. Estelle, director of the state department of corrections, for lack of adequate medical treatment, for denying him a work excuse and for punishing him for refusing to work when medically unfit. The U.S. District Court dismissed the case for failure to state a claim under the Eighth Amendment, and the case came before the Supreme Court.
By this time, the Supreme Court had before it the common law precedents from Spicer and other state courts, statutory authority in 22 states for the same proposition, development of parallel Eighth Amendment jurisprudence by the lower federal courts and the standards of numerous organizations, including the U.S. Department of Justice, the National Sheriffs’ Association and the United Nations.
[...]
It found that denial of medical care to the incarcerated, could, at worst, result in a “lingering death” and, in less serious cases, cause “pain and suffering which no one suggests would serve any penological purpose.”
The court developed the standard “deliberate indifference to serious medical needs” to define the Eighth Amendment obligation to provide health care under the Constitution. It has remained largely unchanged for the last 30 years.
http://www.ncchc.org/pubs/CC/legal_30years.html
The equal protection clause is in the 14th.
ReplyDeleteI've continually argued that, in this case, the 8th *shouldn't* apply. And while I've not argued the stare decisis, I am aware of the precedents and arguments. It's why I haven't argued along those lines! :-) I still do not consider it morally correct to provide that which Kosilek murdered to obtain.
Anyway, the Supremes have *never* found that prisoners are entitled to 'perfect' care - only adequate. In this case, my argument that the medical care Kosilek is receiving fulfills that standard; any more would be providing more than what is provided outside the prison system - so fairness is a consideration as well. (Or at least I think it is.)
In this case, there's a huge difference between providing what the butcher wants and what is morally correct. And, as I'm sure you're aware - the law is not always morally correct.
As I've been told that I'm cruel and heartless (etc) for suggesting that I don't care about Kosilek's personal happiness, I won't mention that.
I am fully aware that I am in the minority, within the greater "trans" community on this issue. I am also fully aware that my opinion on the matter is not only not-respected, but reviled as well. (Along with me... :-) ) As such, I'll refrain from further contribution to this debate on your blog, Diana.
I am confused, why do you say "not-respected, but reviled as well."
ReplyDeleteI might disagree, but I respect your opinion. I thought we were having a good discussion. You presented your case and I presented mine. I don't think I was using any abusive language or scolding you.
I am not calling you "cruel or heartless" but that is what the courts have said about denying medical treatment. You are not alone in your opinion, as a matter of fact you are in the majority in that opinion and I am in the minority.
I hope that you will come back and leave comments again.
No, not you, Diana!
ReplyDeleteIt's a discussion I've had over the last week or so; the individual conversations have not gone "well". It's been made clear that my opinion is reviled, as well myself for holding that opinion.
(My apologies for any implication!)
As far as the discussion goes - I'd be very careful about advocating that the court is "right". In this case, all that has happened is that a judge has pronounced upon the case - his is not the final word. (Although Kosilek's lawyers did try to make it such - by insisting that if the case went to its inevitable appeal, the state would be forced to pay them over $800,000 in legal fees.)
To me the overriding morality of the case is that Robert Kosilek killed his wife in order to make it easier for him to get a sex change. Twenty and a bit years later, as Michelle, she has managed to get a judge to agree. Therefore it's become very much a "the crime did pay" situation - and considering that the woman he murdered, his wife, was killed in a particularly gruesome manner, that he tried to get away with the murder and that it was because he was too cowardly to get a divorce, I'd argue that the judge put his finger on the scales of morality. Which is more important: Kosilek's arguably "important" mental well-being or the fact that she has she accomplished what she set out to do: get a sex change. Which is the greater moral "right"?
Also, the judge stated that gender dysphoria was a "major mental illness". That, to me, makes the judgment all the more unpalatable - it's not a mental illness, but a condition we're provided with from the womb.
Add in that we now have a situation where it's not just "prisoners must be granted a sex change" - it's "which prisoners?" CeCe McDonald, who killed someone, and is now serving 41 months (after finally admitting guilt)? Or is the precedent restricted to only prisoners who will never see another free day?
All in all, while it was a comprehensive judgement, I can't help but think that its supporters might want to think about the implications of it. It's definitely, to me , a "be careful what you wish for - you might just get it" situation.