21 September 2012

Michelle Kosilek: A Dilemma Of The Eighth Amendment

On one hand, we have the Eighth Amendment of the United States Constitution, which forbids "cruel and unusual punishment."  This is interpreted to mean, among other things, that prisoners cannot be denied necessary medical care.

On the other hand, we have someone who brutally murdered a spouse nearly two decades ago.  This person has a condition that was not diagnosed until after the murder conviction, and is listed as a psychiatric disorder in DSM-V.

It just happens that treatment for this person's condition is very expensive.  Only two insurance plans in the United States cover the cost of it.  It's one of the reasons why the vast majority of people with the condition don't get, or get very minimal, treatment.

Since you're reading this blog, you've probably guessed where this is going:  What if the prisoner is transgendered, and the condition was diagnosed after the murder?  

The prisoner in question is Michelle (nee Robert) Kosilek.  As a Boston Phoenix editorial points out, she's "an unsympathetic poster child for prisoner or transgender rights.   And those two issues are central to this case."

Kosilek has been receiving hormone treatments since she was diagnosed nine years ago.  Recently, Chief US District Court Judge Mark Wolf ruled that the State of Massachusetts has to provide Kosilek with gender-reassignment surgery.  Wolf, who has the reputation of being a tough "law and order" judge, recognizes that GRS isn't cosmetic surgery and that under the law, he really couldn't make any other ruling.  Still, he noted--perhaps with irony or sarcasm--that, "It may seem strange that in the United States, citizens do not have a constitutional right to adequate medical care, but the Eighth Amendment promises prisoners such care."  

On one hand, I can see how some people would think it unfair that Kosilek is getting a surgery most people can't afford and almost no insurance plan covers.  The ire of some such people is no doubt fueled by their misconceptions or hatred of trans people.  Others may simply object to so much money being spent on someone who committed a brutal murder. On the other hand, I understand that Judge Wolf--who, I suspect, has a pretty high level of integrity--knew that he was bound by the Constitution of this country.  He would have made the same ruling if Kosilek were still living as Robert and, instead of gender dysphoria, he was suffering from some form of cancer or some rare disease.  Yes, it's unfair that many people die because they can't afford, or their insurance doesn't cover, the treatments.  However, denying care to someone else for whom it is available doesn't right the situation of someone who does not have access to the necessary care.  

Judge Wolf made, I think, the correct decision, given the circumstances.  Now, if we really think it's unfair that prisoners have access to medical care that perhaps one out of every four Americans don't (and most prisoners wouldn't, were they not in prison), we have to figure out a way to make access to health care more equitable.  Denying care to someone, or some group of people, is not the way to do it.