Vol. 13 No. 2 (February 2003)

 

THE HUMAN BODY ON TRIAL by Lynne Curry.  Santa Barbara: ABC-CLIO, 2002.  237 pp. Cloth $55.00. ISBN: 1-57607-349-1.

 

Reviewed by Bill Weaver, Department of Political Science, University of Texas at El Paso. Email: wweaver@utep.edu.

 

Why doesn't everybody leave everybody else the hell alone?

                                                                                                            Jimmy Durante

 

One of the main things that governments do is push people around.  Up until recently this took the simple forms of killing, beating, taking property, imprisonment, extortion and various other direct and crude means of coercion.  Of course, these kinds of activities still occur, but governmental coercion in the United States has become more ranging and often more subtle. The most interesting and important questions concerning this coercion form along the moving seam between what is justified by public morals, health, and safety and what is prohibited by the Constitution.  Is it constitutional to put an expectant mother in jail to save the fetus from the mother’s drug addiction?  If so, how far may the state go in protecting the unborn child?  Would or should the state have greater difficulty with this question if the mother is a smoker rather than a drug abuser?  Overeats?  Insists on rock climbing?  At this writing instances abound of governmental coercion at or beyond constitutional limits:  the federal Eighth Circuit Court of Appeals has held it constitutional to forcibly medicate a death row inmate to restore him to sanity to be executed; the military is presently holding prisoners without access to counsel, with apparently no prospect of being charged with a crime, and without judicial warrant; in New York City a man boarding a subway was stopped, held for hours, and strip-searched because he set off a radiation detector – he had been receiving radiation treatment for cancer; a researcher for a “left wing” organization was deplaned, searched, and required to submit to a retinal scan before being released.  The confluence of technology and bureaucracy creates myriad more ways, and justifications, for government to intrude on citizens’ lives and to demand that they conform their bodies to bureaucratic desires in the name of public health and safety.

 

Bureaucratic and judicial control of bodies is an important subject that is nevertheless, at least for me, difficult to teach.  Because the subject is so overwhelming and nuanced I sometimes have a hard time deciding where and how to start a classroom investigation of the topic.  Lynne Curry has produced a very nice book that provides a wedge into the subject of governmental power over our bodies, addressing the question “Where do we draw the line between the right to control what happens to our own bodies and the state’s duty to protect us from harm to our physical being?”  Curry divides her book between narrative commentary of the various issues treated and primary source material that is mainly in the form of edited case law and trial testimony.  Her commentary is well-organized and broken down into four chapters: introduction to issues of governmental coercion over peoples’ bodies; a history of issues; a summary of case law; a “legacy and impact” discussion.  It helps that Curry is an historian and that she provides historical lineaments to the various means of coercion taken by government over the decades.  Even though the narrative portion of the book is a mere one hundred pages, it is surprisingly detailed and comprehensive.  Of course, Curry cannot go into depth on each issue, but she does not mean to since the book is mainly designed as a handbook and to create classroom discussion and reflection.  She addresses issues as diverse as ownership of the human body, quarantine power, immunization statutes and cases, regulation of working conditions, the right to die, and the rights to sexual autonomy, procreation, and abortion. In the Legacy and Impact chapter, Curry brings the discussion into contemporary focus by addressing the affect technology has had on traditional issues of control over our bodies.  She relates current biotechnology research to Justice Holmes’ views expressed in BUCK v. BELL that society may eliminate the “unfit” from its ranks by prohibiting to them the right to procreation.  Curry notes that, “individual liberty interests in reproductive choice clash with the specter of a new eugenics and [generate] anxieties about repeating the horrors of such practices taken to extremes.”  Curry closes the narrative section of the book with a brief discussion of bioterrorism, relating it to the history of state power to quarantine, vaccinate, and seize and destroy infected property.  Curry ultimately asks if our “well-established legal doctrine of bodily autonomy” and revulsion toward public coercion can survive technology and bureaucracy.

 

In the primary source material section, Curry includes edited versions of cases and trial testimony concerning compulsory vaccination (JACOBSEN V. MASSACHUSETTS; ZUCHT V. KING), forcible sterilization (BUCK V. BELL; SKINNER V. OKLAHOMA), the right to sexual autonomy (GRISWOLD V. CONNECTICUT; BOWERS V. HARDWICK), abortion rights (ROE V. WADE; WEBSTER V. REPRODUCTIVE HEALTH SERVICES; PLANNED PARENTHOOD V. CASEY), and the right to refuse treatment and the right to die (CRUZAN V. MISSOURI; WASHINGTON V. GLUCKSBERG).  Curry also includes an annotated bibliography, a glossary of “Key People, Laws, and Concepts,” a table of cases, and a chronology of the development of issues discussed in the book.

 

Dr. Curry has put together a book that is clear and concise and is perfect for undergraduate courses in civil liberties or women’s studies. It will allow the student to gain entry into complex subject matter, and is a good starting point for discussion and exploration of government control of the body.  My main complaint with the book is that at $55 it is probably too expensive to assign, since it is insufficiently detailed or beefy to use as a primary textbook.  Hopefully this useful collection of primary sources and commentary will be released in paperback so it will have the fighting chance at course adoption that it deserves.

 

CASE REFERENCES

BOWERS V. HARDWICK, 478 US 186 (1986).

 

BUCK V. BELL, 274 US 200 (1927).

 

CRUZAN V. MISSOURI, 497 US 261 (1990).

 

GRISWOLD V. CONNECTICUT, 381 US 479 (1965).

 

JACOBSEN V. MASSACHUSETTS, 197 US 11 (1905).

 

PLANNED PARENTHOOD V. CASEY, 505 US 833 (1992).

 

ROE V. WADE, 410 US 113 (1973).

 

SKINNER V. OKLAHOMA, 316 US 535 (1942).

 

WASHINGTON V. GLUCKSBERG, 521 US 702 (1997).

 

WEBSTER V. REPRODUCTIVE HEALTH SERVICES, 492 US 490 (1989).

 

ZUCHT V. KING, 260 US 174 (1922).

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Copyright 2003 by the author, Bill Weaver.