Saturday, August 8, 2009

Our Bodies, Ourselves

In that 1970's tract of feminist political thought masquerading as a medical self help book, women were encouraged to regard their bodies as the battleground where the forces of reaction--the Establishment patriarchy grounded in Christianity and capitalism, warred against the progressive, enlightened socialism of the New Left. The same seminal, revolutionary moment brought the slogan that helped collapse the important distinction between what is private and what is public, and what is the legitimate extent of government control and intrusion into private lives: The personal is the political. The Supreme Court almost at the same time famously derived a right to privacy from the "emanations of penumbras" of certain of the articles of the Bill of Rights which finds a right to privacy, and which disallows states from legislating restrictions on abortion, validating in one way the right of a woman to her own body (skipping over of course the baby's right to hers--that, apparently was an emanation not appearing in the particular penumbra examined by Justice Douglas.)

It is interesting then to find that same tender concern for the privacy rights of individual bodies kicked to the curb deep in the legalese of the House bill conjuring universal, affordable, non-budget busting health care for all God's children. The bill contemplates boards of experts to advise--no, rule on--both what treatments are necessary and feasible, and which citizens are worth spending the republic's limited treasury on. (Funny--for other purposes, the Treasury is always unlimited--no end to the Blue Sky projecting for the goodness of what the Congressional shepherds intend for its little flock, or what the Congress spends on itself.)

The Congress' insistence on making government the provider of health services forces the logic of the distortion of the public/private distinction to its ugly end: your body is not your own, if the government is paying for its upkeep. It's hard to think of a deeper intrusion into private right than the loss of control over one's own health and life, because, well, there isn't one.

Our Bodies, Our Selves co-author (there were twelve) Nancy Miriam Hawley said of writing the book that "We weren't encouraged to ask questions, but to depend on the so-called experts. Not having a say in our own health care frustrated and angered us. We didn't have the information we needed, so we decided to find it on our own." This laudable, and I should say, quintessentially American attitude, helped foster a take-it-back kind of can-doism recognizable in many aspects as what makes America great and exceptional. And of course that is exactly what is under attack in so much of the legislation of this radical left Congress, unleashed under the aegis of the age of Obama.

It occurs to me that this is not merely an assault on the Constitution and way of life of these United States, a solemnly constituted people, although that is serious enough. It goes beyond the Constitution and self understanding of the people of the United States as encoded in our official public documents, all the way to the natural rights philosophy that grounds the constitution and that self understanding itself. It undercuts the first principle of freedom, articulated most famously by John Locke in his theory of labor, property, and freedom. A person has a natural right to what will sustain his life because he owns his body, his self. He has absolute dominion (humanly speaking), and property in, his own person and body. All property right, and all right whatever, follows from that fact. Personal freedom, personal property, constitutional government by consent, and the rule of law all begin in this natural right to one's own self. This is the basis for the well known triad of Lockean natural rights in the Declaration, of life, liberty, and the pursuit of happiness (or property, as Locke has it).

The intrusion into what one may do with one's body, is, like the intrusion into what one may do with one's property, fraught. There is some State interest in restricting property rights in the interest of the greater public good. Pig farms, abattoirs, and salvage yards are not permitted in residential neighborhoods. Likewise, ingestion of narcotic drugs is restricted because of the danger to the public from people out of their minds on them. To the extent that your personal actions or the property that you control is a threat to the health, safety, or welfare of other equally endowed rights-holders--that is to say, every other person, it falls within the province of the public legislation to limit it. Against such legislation seen to exceed these limits, the Supreme Court has established a benchmark which must be met or overcome--strict scrutiny. The Court will apply strict scrutiny to any law thought to impose an undue burden on any fundamental right, or thought to bring invidious discrimination to groups or individuals based on race, sex, religion, and a growing list of things. The restrictions on abortion that Roe swept away were thought to impinge just such a fundamental right--the right of a woman to choose whether or not to carry a baby to term, not withstanding the state's interest in the protection of life and the interest in the ongoing generation of citizens.

Yet now we begin to see legislation restricting what we consume, starting with trans-fats and tobacco. Sugar, alcohol, and non-organic milk are soon to follow. If Congress is paying for our health care, they will certainly not blanch at serving up as laws and regulations all kinds of good ideas about how we should live. (For a fuller discussion, go here) The property we have in our bodies--literally, what is proper to us, and us alone--is, under the health care monstrosity being considered, about to be taken, in much the same way as real property is taken, via something like eminent domain. The government in such cases abrogates personal property rights in favor of a public good--new highway or sewer line needs to run through your yard, so out you go--thanks for playing.

This seems to be what is in prospect for our most personal property, our bodies. We will have restrictions on choice of procedure and drug regimen based on what an expert panel decides is right (read cheapest) for situations like ours--not even a revue of the actual case at hand, just categories of cases, rated first and foremost by age and ability to contribute. Anyone recall just now the Nazi propaganda initiative against the "useless feeders"--disabled, retarded, insane, aged, etc? Anyone not full of Aryan health and vigor was given the heave-ho. But that's really unfair isn't it, to bring in all those Nazi comparisons. Although they didn't cotton to any natural rights either did they? Everyone created equal? Capable of self government? Government by consent? Freedom for self-actualization? I can hear Hermann Goering cocking his pistol at the very sound of those ideas.

The natural right basis of our Constitution is to be overthrown to accommodate the State's spurious interest in equalizing health outcomes. We will all be made miserable at the same rate by government employees masquerading as health professionals who give a damn. Oh, except for Congress. And their staffs of thousands. And the entire federal workforce. And Hollywood and Silicon Valley elites. And all unionized workers. (want to rethink that offer of union representation at your workplace now?) All the rest of us will queue up and wait for whatever rationed bit of drug therapy or surgical expertise is left over, and our right of personal decision over what is most personally proper to us, our bodies, will have been taken under something very much like the doctrine of eminent domain, where the State's interests supersedes our own.

Makes you wish for the timely publication of a good feminist tract regarding personal body decisions and our right to make them. Oh wait--they've got their abortions paid for in this thing, so we won't be hearing any objections from them this time about "experts" or patriarchal intrusion into personal lives.

If only we had a Court that could look for some more penumbral eminations...

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