Enjoying Progress Where We Find It

It's always interesting to see the forms that progress takes. In Pennsylvania, a Superior Court has awarded primary custody of twins to their non-biological, non-adoptive mother, over the objection of her ex-partner, their biological mother. The couple lived together in a "romantic relationship" starting in 1988. They decided to have children by anonymous donor insemination, and in December of 1996 twin boys were born. They lived together as a family until January, 2001, at which point the biological mother took the twins and moved out. In Pennsylvania, a person who stands in loco parentis can obtain primary custody of children without showing that the biological parent is unfit. (This is different from many other states, which require a showing of unfitness before awarding custody to someone other than a biological or adoptive parent.) Instead, the person seeking custody needs to prove by clear and convincing evidence that giving her/him primary custody is in the best interests of the children. In this case, the non-bio mom was able to meet this burden by showing that she had a strong parental bond with the children and that she had respected the children's relationship with their bio mom, whereas the bio mom had repeatedly tried to interfere with non-bio mom's relationship with the children. Further, non-bio mom appeared substantially more stable than bio mom and was able to provide the children with continuity in residence and schooling that bio mom was unable to provide. Therefore, after "a painstaking review of the physical, spiritual, moral and educational issues in the children's lives and a painstaking comparison of each party's response to those issues," the court found the children were better off with their non-bio mom as their primary custodial parent. This may not seem like a big deal. It is just one family court in one state making one very specific decision about one specific family. But to me, it represents huge progress. It was not very long ago that children born to two moms were uniformly found to only have one legal parent, unless the other mom was able to do a "second parent" adoption. This was true even here in California until August, 2005, when the California Supreme Court finally ruled that children can have two "natural" parents of the same gender, if that's who planned for them and parented them from birth. And Pennsylvania is not generally on the forefront of progressive social change. So let's enjoy this step toward universal recognition that in contemporary families, "parents" take many forms. Good for Pennsylvania, and good for the kids!

We Need to be Looking Out for One Another

It's been 10 days since I last posted, and there certainly are things to talk about, but I've been distracted by a wave of ... what's a polite way to say it ... unfortunate occurrences around me, and I've been finding it hard to write. It seems like ever since Katrina hit, things have just gotten uglier and uglier out there. On the "macro" scale, we've had Hurricane Rita adding insult to injury. The earthquake in Pakistan. The 2000th U.S. casualty in this endless, pointless Iraq war -- and I can't even imagine how many Iraqi casualties along the way. On the "medium" scale, the local headlines last week alternated between the brutal murder of the wife of a prominent Bay Area criminal defense attorney -- someone I used to regularly see in court during my public defender days -- and the subsequent arrest of a 16 year old boy who everyone agreed was a good kid until he was traumatized by his sister's death in a car crash and his dad's divorce from his step-mom; and a story about a young mother throwing her 3 young children (4, 2 and a baby) off the end of one of the San Francisco piers, where they all drowned in the murky, cold water before anyone could do anything. And on the "micro" scale, a very dear friend who was diagnosed 4 years ago with inflammatory breast cancer (and women, if you don't know about inflammatory breast cancer it's time to find out -- it's the most aggressive form of breast cancer and has a whole different way of presenting itself than other, more common types of breast cancer -- see http://imaginis.com/breasthealth/inflammatory.asp for details) is having a recurrence of her cancer, this time in her lung, and is currently in the hospital; and a sweet and gentle 9-year-old on my son's baseball team ran into the corner of a ping pong table at school and ruptured his duodenum (the tube connecting the stomach to the small intestine) and had to have emergency surgery followed by a week in the hospital recovering and guarding against infection -- talk about an abrupt end to a child's baseball season! So back to where I started. With all this *stuff* raining down around me, both near and far, I have been trying to remind myself to stop and enjoy a beautiful view when I have the opportunity (which I do often in this lovely city in which I live); to take a moment to savor a particularly tasty bite of food; to cherish the happy moments with my partner and our own children who, thankfully, are thriving. And I also have been trying to remind myself to look out for those around me -- to take the time to say "good morning" and "how are you doing today" to friends and strangers as I pass them on the streets and in the halls -- to try to spread a little kindness, in an effort to counterbalance some of the malaise out there. A colleague sent me an e-mail last week about a work matter. At the end of her note, completely out of the blue, she wrote: "Are you doing okay? Most folks around here are in a bit of a personal muddle...must be the astrological alignments." I was touched by her concern, coming from absolutely nowhere as it was (she didn't know about my friend with cancer, or my partner's knee surgery, or the kid who ran into the ping pong table). And it made me realize -- since it's raining *stuff* out there right now, let's all try to take the time to look out for one another. Just knowing someone cares can make such a difference, when the going gets tough.

The Ethical Duties of Doctors ... And Lawyers

My partner and I had a very interesting conversation over dinner last night, prompted by an article about the case Benitez v. North Coast Women's Care Medical Group. Benitez is a lawsuit, brought by a Southern California lesbian, against a medical group that refused to provide insemination services for her based on her sexual orientation. It was argued in the Court of Appeal last week, so an opinion should be coming out in another month or so. The California Medical Association originally filed an amicus brief supporting the rights of the doctors to refuse insemination services to Ms. Benitez on religious grounds. They later withdrew this brief and wrote a letter in support of Ms. Benitez's right to obtain medical treatment without regard to her sexual orientation. (For full details on the Benitez case, visit Lambda Legal's website at http://www.lambdalegal.org/cgi-bin/iowa/cases/record?record=222.) This case arises in the context of a national movement to allow doctors and pharmacists to refuse treatment on religious grounds. Examples include a Michigan law, passed by the Michigan House in May, 2004 on a vote of 69-35, titled the Conscientious Objector Policy Act, which would have allowed health care providers to refuse treatment to patients for moral, eithical or religious reasons. It was broadly believed that this bill, if enacted into law, would have allowed doctors to refuse to provide treatment to LGBT patients except in emergencies. Similarly, pharmacists are fighting for the right to refuse to fill prescriptions on moral and religious grounds. As stated by the president of Pharmacists for Life -- who was herself fired from an Ohio Kmart for refusing to fill birth-control prescriptions -- "What's been going on is the use of medication to stop human life, that violates the Hippocratic Oath that medical practitioners should do no harm." (See http://www.bet.com/WebApplications/betRoot/Templates/Posting_ArticlePrintFriendly.aspx?{F2932381-1829-49CF-8247-B1415EFB6B6A for a longer article on this issue.) This whole issue raises very interesting questions about the obligations of professionals to work within their professions, even when the work may offend their personal values or religious beliefs. I encountered this issue more than once while working as a public defender. Two obvious examples came during my stint trying felonies in Oakland Superior Court, with two different outcomes. In the first, I was asked to represent a retired Nicaraguan Contra general who at one point, angry at what he perceived as a disrespectful comment from me, said: "Do you know who you're talking to?? Do you know how many Communists I've killed with my own hands?!" He carried a photograph of Oliver North in his breast pocket during his trial, for courage. Needless to say, we had our political differences -- to be blunt, I found him reprehensible, completely regardless of what he was charged with, which was ugly enough in and of itself. Nevertheless, I represented the man because that was my job, and I won him an excellent result following a full jury trial. In other words, I did my job well, because ... that is what I was trained to do. In the other case, I was asked to represent a young man charged with breaking the jaw of a man who had just left a gay bar -- a "gay bashing" incident. The young man was adamantly professing his innocence of the charge and, after reviewing the evidence, I actually thought he might well be right. I nevertheless declared a "conflict of interest" in that case and had someone else assigned to it, because I was concerned that my mixed feelings -- based on my own experiences with and strong opinions about anti-gay violence and harrassment -- would interfere with my ability to do my job. So I felt my ethical obligation was to decline to personally represent the client -- but to see that someone good was appointed in my stead so that he would be well-represented. So what do doctors do who have a "conflict of interest"? Do they refuse treatment that would allow lesbians to have children, because their sincere religious beliefs tell them that lesbianism is an unpardonable sin? Where do the licensing requirements for doctors -- and for lawyers -- control, over and above the personal ethics/morals of those doctors/lawyers? The American Medical Student Association wrote a long letter to the California Medical Association about the Benitez case, in which they framed the issue this way: "Since Hippocrates' time, physicians have answered a calling to treat all who are in need of our care, regardless of who the patient may be.... As physicians, our obligation is first and foremost to our patients. We are allowed to refuse to comply with our patients' requests in a very limited number of circumstances: when the care required is beyond the physician's scope of practice; when the care is something that a particular physician does not offer to any patient; and when providing a particular procedure would violate a physician's conscience." The AMSA went on to note that the problem in the Benitez case was that the doctors were refusing to perform a procedure not because of an opinion that the procedure was unethical or immoral, but rather because they found the patient objectionable. This seems like a good distinction to me. When I found my client objectionable, I nevertheless provided the best representation I could based on my ethical obligations as a lawyer. When I found the crime so objectionable as to make me question my ability to provide the caliber of counsel required, I declined representation. But I found other, able counsel for the client. I did not leave him unrepresented. And this is important. What does this mean for doctors? Am I actually arguing in favor of a physician's right to refuse to perform abortions, if s/he feels unable to do so without violating a hearfelt moral/religious principal? I guess I am -- with confidence that there will always be doctors who can perform abortions without offending their personal ethics -- the same way that I support my friend Lisa's right to refuse to perform circumcisions, even though she's Jewish, because she can't bring herself to personally do this procedure. But I also expect the physicians to respectfully assist the patients in finding other medical professionals to provide the services that they, themselves, feel ethically unable to provide. This is the least that our professional oaths require. As a professional myself, I have experienced the tension between taking a vow to perform one's services well for whomever needs one's help, and still having one's own heartfelt moral compass that says "there are certain things I cannot do." And here's the bottom line: I don't want my abortion performed by a doctor who finds the procedure reprehensible. I don't want to be defended at trial by someone who secretly wants to see me convicted. And I hope that there will always be enough doctors -- and enough lawyers -- with diverse religious, ethical and moral beliefs that the full range of services can be provided to all that need them, without compromising the personal integrity of the individuals performing the services. That said, I believe it is the responsibility of every doctor, every lawyer, every pharmacist to make sure that patients/clients know how and where to find able professionals to assist them in getting their needs met, and no one's personal morality or religion should prevent us from performing our professional duties to this extent. This seems like a reasonable compromise when personal ethics and professional oaths are in conflict, and one we all should be able to live with.

Harriet Miers for Supreme Court??

Indulge me for a moment while I share a full-fledged attack of progressive paranoia.... When Bush nominated Harriet Miers for the Supreme Court, my first reaction was similar to most people's -- "who?!" Not having made a point of familiarizing myself with those in Bush's less public inner circle, I had never heard of the woman. And frankly, I'd rather have kept it that way. [By the way, for those of you who do want to know more about Harriet Miers, a good starting place is http://en.wikipedia.org/wiki/Harriet_Miers.] I think one of the conservative idealogues fighting the Miers nomination put it best: there is nothing in Harriet Miers' prior record that suggests she has the qualifications or intellect to serve on the United States Supreme Court. Remember, it was Papa Bush who nominated Clarence Thomas to the Court -- our last example of a completely unqualified nominee being used to replace a highly respected jurist based on race/sex demographics, rather than on intellect and talent. Justice Thomas, in my humble opinion, has been an embarrassment to the Court from his nomination to the present. He has brought nothing to the position he holds in the way of either intellect or values -- he almost never authors opinions, but simply joins in the opinions of others with more guts and brains than himself -- he rarely even participates in questionning attorneys from the Bench. (Do you want to know what I really think about Clarence Thomas???) Now here we go with Harriet Miers -- she's a woman, which apparently makes her qualified to replace Justice O'Connor regardless of her intellect or values. Now, here's my progressive paranoid flight: When Harriet Miers was nominated, I expected a swift and fierce reaction from progressives. After all, she's BUSH'S PERSONAL ATTORNEY. She's ONE OF BUSH'S CLOSEST FRIENDS. Worst of all, she has been quoted as saying that BUSH IS ONE OF THE SMARTEST MEN SHE'S EVER MET! Is there any chance at all that she will be in any way moderate, or even impartial, when it comes to ruling on any issue in which the Executive Branch holds a stake??? Hmmm, how do you think Ms. Miers would have ruled in Bush v. Gore -- let me think....... Then, all of a sudden, the right wing of the Republican Party started having fits about Harriet Miers. Wanna-be Supreme Court Justice Robert Bork came out swinging, calling her nomination "a disaster on every level." Headlines everywhere sung the news that Miers isn't pronounced enough in her conservative ideology to be acceptable to the far right. But what happened to the voice of the Left??? Although Move On is valiantly trying to collect real information about Harriet Miers (to contribute information on her, go to www.moveon.org), and the American Constitutional Society is devoting a large section of their website to reviewing the importance of judicial nominations in general, and the current nominations in particular (see http://www.americanconstitutionsociety.org/judiciary/index.html), the media seems to be exclusively focused on criticism from the Right. And here's my fear: what are the Democrats, Independents and moderate Republicans doing to build a strong coalition to fight this nomination?? Is it true, as it currently appears, that progressives in Congress are sitting back and letting the conservatives do the heavy lifting on this one?? Because according to today's San Francisco Chronicle, Lou Sheldon of the Traditional Values Coalition has now given Ms. Meirs the evangelical-extremist-stamp-of-approval, and I'm prepared to bet that the Bush strongmen will manage to do sufficient arm-twisting to bring the rest of the posse into line before too much longer. And where will that leave the rest of us?? I'm really concerned here, folks, that we're being lulled into a sense of security that there is enough protest on the Right that the Left doesn't need to get so worried about this one. And I'm really concerned that we're wrong. And I'm really concerned that the Right will decide that Harriet's okay just late enough in the game to prevent the Left and the Center from organizing sufficiently to keep this woman off the Supreme Court. Which makes me really concerned. Even if Robert Bork and I have never agreed about a single thing before in our entire lives, we agree that Harriet Miers appears to be completely unqualified to sit on the United States Supreme Court, even if she is a woman. So please, folks, don't rely on the far right to keep Meirs off the Court. If we're going to defeat her nomination, we all have to stay in the fight. I agree, we have some very strange bedfellows right now, but these are very strange times....

Living La Vida Loca, California Public School Style

So here's what's been going on in my life the last week: My younger son is in a very well-respected public elementary school -- the same one my older son graduated from last year. There are two separate programs in the school, sharing the same site but with separate teachers and classrooms. The program we are in has long run with one dedicated 4th grade, one dedicated 5th grade, and one 4/5 combo. Last spring, our 4/5 teacher retired and -- due to school closures -- his position was made available to any teacher with seniority who wanted it. We had absolutely no role in the hiring process -- it was simply a matter of the District posting the job and then our waiting to see who took it. Fortunately, someone stepped up for the position who was well-qualified for the job, and we all breathed a big sigh of relief. Over the summer, the "someone" who had taken our 4/5 job was offered a better-paying administrative position, which she took. The District then scrambled to fill the 4/5 teacher slot at our school, ultimately filling it with a very nice, experienced teacher who had taught middle school social studies for the past 25 years. Now she was expected to teach both 4th and 5th graders simultaneously -- after not having taught either 4th or 5th grade in over 25 years -- and she was expected to teach them social studies PLUS math, science and language arts. A tall task for anyone. The first weeks of school were chaotic, with everyone scrambling to try to make this classroom work. The teacher worked hard to get up to speed, and parents stepped in to try to both help the teacher out and figure out ways to supplement where necessary. And then.... Last week, slightly over a month into the school year, we were informed that our elementary school had just lost approximately $63,000 in funding for this school year. That is equivalent to one teacher. All of a sudden, from one day to the next, my son's teacher was being dispatched to another school and his class disbanded, with the kids divied up between all remaining classrooms -- from both our program and the other program -- so that every 4th grade and every 5th grade in the entire school will run with 34 children in a class. That's a 34/1 teacher/student ratio for every 4th and 5th grade. And this is at one of the best public elementary schools in the San Francisco Unified School District. So -- I've spent the last week preparing my son for a new classroom and a new teacher, and trying to figure out how any public school can be successful under the current budget conditions. Thoughts, anyone??