Civil Liberties The National Newsletter of the ACLU #380, Spring 1994 (c) 1994 American Ci
Civil Liberties The National Newsletter of the ACLU
#380, Spring 1994 (c) 1994 American Civil Liberties Union
Personal Autonomy: A Right More Vulnerable Than Ever
By Loren Siegel
In the summer of 1989, a particularly ignominious
prosecutorial strategy made its debut at the trial of Jennifer
Johnson, a poverty stricken African American single mother from
rural Florida. Johnson became the first woman ever convicted of
delivering a controlled substance to a minor through her umbilical
Johnson's obstetrician had testified that at birth her baby
appeared normal in every respect. Yet Seminole County Judge O.H.
Eaton sentenced Johnson to one year's house arrest and 14 years'
closely supervised probation, including the proviso that if she
conceived again she would have to follow a court-approved prenatal
Two years prior to Johnson's ordeal, another legal drama had
unfolded in Washington, D.C. as a young woman lay dying of cancer
at the George Washington University Medical Center. Under
treatment since age 13, Angela Carder, at 28, had seemed to be
cured; so she had married and gotten pregnant. In her 26th week,
however, the cancer recurred and her doctors told her she had, at
most, a few months to live.
The hospital, without consulting the doctors, engaged an
attorney who sought a court order to deliver Carder's fetus by
caesarian section. A District of Columbia Superior Court judge
appeared at the hospital unannounced and held a six-hour bedside
hearing. Despite Carder's unequivocal testimony that she did not
want surgery, and the testimony of her oncologist that invasive
surgery would hasten her death, the judge ordered the caesarian
performed. The baby girl died almost immediately after delivery;
Carder died two days later.
What is shocking in each of these cases is that the government
stripped a woman, rendered powerless and vulnerable by
circumstance, of her dignity and right to personal autonomy.
The right to do what one will with one's body and mind is
clearly a hallmark of a free society, but the fact is that our
society has never fully recognized personal autonomy -- either
jurisprudentially or in everyday life. American jurists have
usually supported that right only in dissent. One famous example
is Supreme Court Justice Louis Brandeis' dissent of 1928, in
Olmstead v. US, a Prohibition-era case in which the majority upheld
the warrantless wiretapping of a suspected bootlegger's telephone.
Justice Brandeis wrote:
"The makers of our Constitution undertook to secure
conditions favorable to the pursuit of happiness. They
recognized the significance of man's spiritual nature, of
his feelings and his intellect.... They sought to protect
Americans in their beliefs, their thoughts, their
emotions and their sensations. They conferred, as
against the Government, the right to be let alone -- the
most comprehensive of rights and the right most valued by
civilized men [sic]."
The framers of the Constitution, though they cared deeply about
personal autonomy, did not explicitly protect it in the Bill of
Rights. And the Supreme Court, while recognizing it in some
narrowly defined spheres, has consistently refused to interpret the
Constitution as guaranteeing a general right of personal autonomy.
As a result, the development of a personal autonomy jurisprudence
has been extremely difficult.
Through the years, non-recognition of personal autonomy as a
fundamental right has enabled authoritarians in high places to
deny individuals the right to control their own bodies, and to
continue enforcing laws against victimless activities, such as
prostitution, drug use and gambling.
If personal autonomy is so fundamental, why has it remained
unfulfilled? In his essay, The Control of Conduct: Authority vs.
Autonomy, Dr. Thomas Szasz answers that autonomy is a formidable
"threat to authority .... [T]he person who controls himself, who is
his own master, has no need for an authority to be his master.
This then renders authority unemployed ... Autonomy is the death
knell of authority, and authority knows it." Uppity women who want
to control their reproductive capacities, and unabashed drug users
who want to control their own states of consciousness, pose a
threat to the authoritarian state -- hence, "the ceaseless warfare
of authority against the exercise of autonomy."
For a moment in recent history, we came a bit closer to
achieving recognition of the right to autonomy. More than a decade
of activism by minorities, women, gays and drug users, combined
with the growth of a significant counterculture and the public's
heightened concern about privacy in the post-Watergate era, forced
some important concessions from government:
> In 1972, the Nixon-appointed National Commission on
Marijuana and Drug Abuse released an official report that, much to
Nixon's dismay, recommended partial decriminalization of marijuana
on the ground that "the use of drugs is not in itself an
> In 1973, Roe v. Wade freed American women from back alley
butchers and guaranteed them the Constitutional right to terminate
> In 1974, the people of California voted to include an
explicit right to privacy in their state constitution, enforceable
against both governmental and private encroachments. This
amendment made it possible, more than a decade later, to bring
successful lawsuits against drug testing in the California state
> In 1975, Alaska's highest court held, in Ravin v. State,
that Alaskans had the right to cultivate marijuana for personal
> In 1978, the public supported legalization of marijuana by
31 percent, up from only 13 percent a decade earlier.
Nonetheless, a backlash against women's reproductive rights,
loosened drug prohibitions and other trends toward self-
determination developed rapidly. Anti-choice activists, especially
right wing religious fundamentalists, became a potent political
force. Anti-drug parents' groups also sprouted during this period.
By 1979, the backlash swept into office a devotee of big business
deregulation and the re-regulation of peoples' lives.
The 1980s proved devastating for the right to personal
autonomy. State legislatures dominated by anti-choice
representatives enacted public funding, parental consent and
waiting period laws that burdened a woman's right to choose. Some
legislatures, emboldened by the anti-choice views emanating from
the White House, recriminalized most abortions.
By the mid-'80s, the "war on drugs" was at full tilt. A
series of Supreme Court decisions incrementally destroyed the
Fourth Amendment's guarantee against unreasonable search and
seizure, and intensive street level enforcement of drug laws filled
the nation's prisons with non-violent drug users and sellers. By
1989, both judicial and popular support for the right to autonomy
had diminished markedly. Hatred of drug users became so strong
that even their susceptibility to the deadly AIDS virus aroused
little sympathy. And while a majority of the public still
supported legal abortion, a majority also voiced approval of
restrictions on the exercise of that right -- which meant that poor
and young women virtually lost the right altogether.
The year of Jennifer Johnson's conviction was bleak, indeed:
A newly constituted Supreme Court gutted Roe and threw out the
Fourth Amendment. In Webster v. Reproductive Health Services, the
Court upheld a Missouri law whose preamble declared that human life
begins at conception, and which forbade public employees from
providing abortion services not required for life-saving. An
enraged Justice Blackmun wrote, in dissent, "I fear for the liberty
and equality of the millions of women who have lived and come of
age in the 16 years since Roe was decided."
In the first two drug testing cases to reach the Court,
involving railway and customs service workers, respectively, the
majority held the government to a new, extraordinarily weak
"special needs" standard for conducting warrantless searches of
public employees' urine. Justice Marshall, dissenting, wrote: "I
believe the Framers would be appalled by the vision of mass
governmental intrusions upon the integrity of the human body that
the majority allows to become a reality ... ultimately, today's
decision will reduce the privacy all citizens may enjoy." As
usual, Justice Marshall was right.
If "[a]utonomy is the death knell of authority, and authority
knows it," the converse is not always true. Women, lesbians and
gay men, children, minorities, the poor and drug users, who are
bound not only by their historic lack of power but by their lack of
personal autonomy, have a common interest in supporting each
other's rights. Yet victims of authoritarianism do not always
recognize their shared plight and common interests.
The gay rights movement is participating in the fight against
drug prohibition, even risking criminal liability to help protect
intravenous drug users from HIV disease by establishing needle
exchange programs and promoting harm reduction strategies. And gay
rights activists are prominent in seeking the availability of
marijuana for AIDS sufferers.
Women, on the other hand, have acted ambiguously. Some
feminists rallied around Jennifer Johnson and others prosecuted for
taking drugs during pregnancy; there, the link between choosing to
use drugs and reproductive choice was blatant. But the organized
women's movement has greeted the outrageous violations of people's
rights attending the "war on drugs" with silence. Looking back,
the Women's Christian Temperance Union, founded in 1873,
spearheaded the ultimately successful campaign for national
prohibition. But women also figured prominently in Prohibition's
repeal. In 1929, concerned about spiraling crime, violence and
corruption, as well as about prohibition's role in the reversal of
a trend toward moderation and restraint in drinking habits, women
established the Women's Organization for National Prohibition
Reform. By 1932, membership had surpassed one million, making it
the largest anti-Prohibition organization in the country.
Which aspect of this women's history will repeat today? Will
the women's movement once again put drug prohibition on its agenda?
Civil libertarians are fond of saying that rights are
indivisible, that the first victims of government abuse are never
the last. That's why we support the free speech rights of those
whose ideas we despise. The same principle must apply to the right
of personal autonomy. If a person can be locked up for smoking a
joint or shooting dope, then I could possibly be locked up for
taking RU486. Drug prohibition is bad for everyone, but especially
for those of us who for so long have been "less equal than others."
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