Civil Liberties The National Newsletter of the ACLU #380, Spring 1994 (c) 1994 American Ci

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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 cord. 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 care program. 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 irresponsible act." > In 1973, Roe v. Wade freed American women from back alley butchers and guaranteed them the Constitutional right to terminate a pregnancy. > 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 courts. > In 1975, Alaska's highest court held, in Ravin v. State, that Alaskans had the right to cultivate marijuana for personal use. > 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." ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office ftp://aclu.org | mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"

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