Against the right to bodily integrity: Of cyborgs and human rights

Denver University Law Review

Volumn 87, Issue 1, 2010, Pages 1-57

  Ramachandran, Gowri ^a,b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b Southwestern Law School   (United States)

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EID: 77952285638     PISSN: 08839409     EISSN: None     Source Type: Journal    
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References (333)

1. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (citing Rochin v. California, 342 U.S. 165 (1952) (recognizing a right to "bodily integrity");
2. Universal Declaration of Human Rights, G.A. Res. 217A, at 71, 72, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948), available at http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/043/88/IMG/NR004388.pdf? OpenElement (stating in Article 3 that "[e]veryone has the right to life, liberty and security of person");
3. MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH 78 (2000) (listing bodily integrity as one of ten "central human functional capabilities").
4. See, e.g., Stephen R. Munzer, An Uneasy Case Against Property Rights in Body Parts, in PROPERTY RIGHTS 259, 261 (Ellen Frankel Paul et al. eds., 1994);
5. Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. REV. 359, 360-63 (2000) (describing the American constitutional right to bodily integrity and the fact that it has the character of a privacy interest - not a property interest - in that it protects against state interference, but does not protect a right to alienate the interest);
6. see also Margo A. Bagley, Patent First, Ask Questions Later: Morality and Biotechnology in Patent Law, 45 WM. & MARY L. REV. 469, 511-12, 546 (2003) ("[T]he result may soon be, among other things, patents on human fetuses that are genetically modified in ways one can only imagine. Patent protection could convert such fetuses, to the extent they are denied constitutional protection, into justifiable commodities, supplying life-saving tissue and organs to sick children and adults.").
7. See, e.g., U.S. DEP'T OF HEALTH & HUMAN SERVS., ORGAN TRANSPLANTATION: ISSUES AND RECOMMENDATIONS 99 (1986);
8. HASTINGS CTR., ETHICAL, LEGAL AND POLICY ISSUES PERTAINING TO SOLID ORGAN PROCUREMENT: A REPORT OF THE PROJECT ON ORGAN TRANSPLANTATION 3-4 (1985);
9. Munzer, supra note 2, at 266 (describing the Kantian human dignity argument as applied to organ sales);
10. see also Susan M. Shell, Kant's Concept of Human Dignity as a Resource for Bioethics, in HUMAN DIGNITY AND BIOETHICS: ESSAYS COMMISSIONED BY THE PRESIDENT'S COUNCIL ON BIOETHICS 333, 344-45 (2008), available at http://www.bioethics.gov/reports/human-dignity/h uman-dignity-and-bioethics.pdf.
11. Cf. Eugene Volokh, Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 120 HARV. L. REV. 1813, 1835 (2007). Volokh based his argument not in a right to "bodily integrity," but in a right to self-defense.
12. Id. at 1815-16.
13. See Stephanie Farrior, The International Law on Trafficking in Women and Children for Prostitution: Making it Live Up to Its Potential, 10 HARV. HUM. RTS. J. 213,218 n.24 (1997) (noting the argument made by Coalition Against Trafficking in Women that prostitution "usurps and negates prostitute women's right to human dignity, bodily integrity and physical and mental well-being");
14. Jane E. Larson, Prostitution, Labor, and Human Rights, 37 U.C. DAVIS L. REV. 673, 677 (2004) (pointing out that the view - "any form of prostitution is a human rights violation" - is supported by the 1949 UN Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others where it states that "prostitution and ... traffic in persons for the purposes of prostitution are incompatible with the dignity and worth of the human person").
15. See Int'l Comm. for Prostitutes' Rights, World Charter for Prostitute Rights, in A VINDICATION OF THE RIGHTS OF WHORES 40, 40 (Gail Pheterson ed., 1989), available at http://www.walnet.org/csis/groups/icpr-charter.html;
16. Norma Jean Almodovar, For Their Own Good: The Results of the Prostitution Laws as Enforced by Cops, Politicians and Judges, 10 HASTINGS WOMEN'S L.J. 119, 123 (1999) (arguing that the subsidiary effects of criminalizing prostitution is "violative of human rights and dignity");
17. Larson, supra note 5, at 681 (describing arguments for legitimizing prostitution on the grounds that it "is a free choice made by an autonomous individual" and that "[r]espect for women's self-determination requires respect for female choices about sex and survival");
18. see also DEBORAH L. RHODE, JUSTICE AND GENDER: SEX DISCRIMINATION AND THE LAW 262 (1989).
19. See, e.g., RABBINICAL COUNCIL OF AM., POLICY STATEMENT ON HUMAN DIGNITY AND LABOR (1987), http://www.rabbis.org/news/article.cfm?id-101063 (describing the fact that "workers in chemical factories may be exposed to dangerous chemicals or radiation, the effects of which are not recognized or diagnosed for many years" as compromising human dignity, to explain a position supporting "legislation that will raise the standards of employment" in that and other industries).
20. E.g., Sherr v. Northport-East Northport Union Free Sch. Dist., 672 F. Supp. 81, 91 (E.D.N.Y. 1987) (finding that under the First Amendment, religious exemption to New York's mandatory inoculation program for school children must be extended to all persons who sincerely hold religious beliefs, and not just persons who are bona fide members of a recognized religious organization).
21. Cf. Gowri Ramachandran, Freedom of Dress: State and Private Regulation of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, and Piercing, 66 MD. L. REV. 11, 60-69 (2006).
22. However, there may be other, purely policy-based, non-rights-based justifications for the regulation of those transactions, such as public health. See, e.g., RICHARD TTTMUSS, THE GIFT RELATIONSHIP (1970), reprinted in THE GIFT RELATIONSHIP: FROM HUMAN BLOOD TO SOCIAL POLICY, 57-315, at 314 (Ann Oakley & John Ashton eds., 1997) ("[C]ommercial markets are much more likely to distribute contaminated blood; the risks for the patient of disease and death are substantially greater.").
23. "The personal is political" was coined by members of New York Radical Women, including Carol Hanisch, in the late 1960s. JENNIFER BAUMGARDNER & AMY RICHARDS, MANIFESTA: YOUNG WOMEN, FEMINISM, AND THE FUTURE 19 (2000).
24. See, e.g., TITMUSS, supra note 10, at 206, 270, 314.
25. E.g., Almodovar, supra note 6, at 127 ("'Quality of life' is a subjective concept and the least impressive argument for the continued harassment, arrest and incarceration of a group of people who are trying to improve their quality of life by earning a living.");
26. Martha C. Nussbaum, "Whether from Reason or Prejudice": Taking Money for Bodily Services, 27 J. LEGAL STUD. 693, 696 (1998) ("The legalization of prostitution, far from promoting the demise of love, is likely to make things a little better for women who have too few options to begin with.").
27. Cf. Dan M. Kahan, The Cognitively Illiberal State, 60 STAN. L. REV. 115, 115 (2007) (arguing that "individuals naturally impute socially harmful consequences to behavior that defies their moral norms," thus supporting law that "repress[es] morally deviant behavior" while "honestly perceiv[ing] themselves to be motivated only by... harm prevention").
28. See MICHELE GOODWIN, BLACK MARKETS: THE SUPPLY AND DEMAND OF BODY PARTS 194-96 (2006) (describing authors opposing commodification of body parts on the grounds that it is like slavery);
29. see also DAVID B. RESNIK, OWNING THE GENOME: A MORAL ANALYSIS OF DNA PATENTING 1-7 (2004) (describing controversy over DNA patenting that includes slippery slope arguments ending in slavery).
30. E.g., sources cited supra note 3.
31. E.g., Rao, supra note 2, at 387-88 (describing the American constitutional right to bodily integrity and the fact that it has the character of a privacy interest, not a property interest, in that it protects against state interference but does not protect a right to alienate the interest).
32. E.g., Proclamation No. 8339, 74 Fed. Reg. 3955 (Jan. 15, 2009) (proclaiming the President's designation of January 18, 2009 as National Sanctity of Human Life Day);
33. Daniel C. Dennett, How to Protect Human Dignity from Science, in HUMAN DIGNITY AND BIOETHICS,
34. supra note 3, at 39,40 ("Human life, tradition says, is infinitely valuable, and even sacred ....");
35. William P. Clark, Op-Ed, For Reagan, All Life Was Sacred, N.Y. TIMES, June 11, 2004, at A27, available at 2004 WLNR 5467725.
36. E.g., Vatican Bishop Points to Modern Social Sins, CATHOLIC NEWS AGENCY, Mar. 11, 2008, http://www.catholicnewsagency.com/new.php?n-12031 (reporting the inclusion of "'bioethical' violations such as birth control" and '"morally dubious' experiments such as stem cell research" in a list of seven modern social sins released by the Vatican via an interview with Bishop Girotti);
37. see also Nicola Gori, The New Forms of Social Sin, L'OSSERVATORE ROMANO, Mar. 9, 2008, available at http://blog.acton.org/uploads/penitentiary-interview. pdf (interview with Bishop Girotti).
38. E.g., Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1852, 1885 (1987) [hereinafter Radin, Market-Inalienability];
39. see also MARGARET JANE RADIN, CONTESTED COMMODITIES 55-56 (1996) [hereinafter RADIN, CONTESTED COMMODITIES];
40. Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957, 1014-15 (1982) [hereinafter Radin, Property and Personhood].
41. E.g., U.S. DEP'T OF HEALTH & HUMAN SERVS.,
42. supra note 3, at 96;
43. Munzer, supra note 2, at 266 (describing the Kantian human dignity argument as applied to organ sales).
44. E.g., Susan Estrich, What I Could't Teach Spitzer at Harvard Law, REAL CLEAR POLITICS, Mar. 13, 2008, http://www.realclearpolitics.com/articles/2008/ 03/what-i-couldnt-teach-eliot-spi.html:
45. really believe it is none of my business, as a member of the public or the media, if a political or business leader has an affair. I don't sit in judgment of other people's marriages or their private lives. But prostitution isn't just sex. Prostitution objectifies the women who engage in it, dehumanizes sex and sexuality, and turns both into commodities with a price tag. See also Ann Lucas, The Currency of Sex: Prostitution, Law, and Commodification, in RETHINKING COMMODIFICATION 248, 248 (Martha M. Ertman & Joan C. Williams eds., 2005) ("[M]ost objections to prostitution are commodification-based. ").
46. STEPHEN R. MUNZER, A THEORY OF PROPERTY 48-49 (1990) ("Property rights are body rights that protect the choice to transfer.");
47. Radin, Market-Inalienability, supra note 20, at 1854 n.19 ('Traditional property rights are alienable in all senses except cancellation; they may be forfeited, relinquished, waived, condemned, and transferred by both gift and sale.").
48. See, e.g., DAVID B. RESNIK, OWNING THE GENOME: A MORAL ANALYSIS OF DNA PATENTING 1-7 (2004) (describing the controversy over DNA patenting that includes "slippery slope" arguments ending in slavery).
49. See, e.g., Rao, supra note 2, at 455-56 (arguing that a principle in accord with our intuitions on the subject would allow for property rights in body parts that have been detached from a person, but would not allow for property rights in parts still internal to a person's body).
50. NUSSBAUM, supra note 1, at 78 (listing bodily integrity as one of ten "central human functional capabilities"). It is important to note that although Nussbaum supports an intuitionist, seemingly dignitarian approach to developing her list of capabilities, and although bodily integrity maintains a place on her list, her specific views on how to apply those capabilities to law do not necessarily lead to anti-body-commodification positions. For instance, Nussbaum has elsewhere argued for the legalization of prostitution.
51. See Nussbaum, supra note 13, at 723-24.
52. On the other hand, Radin has derived from Nussbaum's capabilities approach and concept of human flourishing a stance against some forms of commodification. RADIN, CONTESTED COMMODITIES,
53. supra note 20, at 64, 93-96.
54. See U.S. CONFERENCE OF CATHOLIC BISHOPS, SHARING CATHOLIC SOCIAL TEACHING 5 (1998), available at http://www.archdiocese-chgo.org/departments/peace-and- justice/pdf/teaching-doc/sharing-social-t-pdf ("[T]he Catholic Church proclaims that human life is sacred and that the dignity of the human person is the foundation of a moral vision for society. . . . [This belief] is the foundation of all the principles of our social teaching.").
55. See Munzer, supra note 2, at 259;
56. Shell, supra note 3, at 344-45.
57. See, e.g., U.S. DEP'T OF HEALTH & HUMAN SERVS., supra note 3, at 96;
58. see also The President's Council on Bioethics, http://www.bioethics.gov (last visited Nov. 2, 2009) (listing "Property in the Body" as one of its main "Topics of Council Concern"). The Council was disbanded on June 11, 2009.
59. Nicholas Wade, Obama Plans to Replace Bioethics Panel, N.Y. TIMES, June 18, 2009, at A24, available at 2009 WLNR 11613820.
60. 42 U.S.C. § 274e(a) (2006).
61. Steven R. Salbu, AIDS and the Blood Supply: An Analysis of Law, Regulation, and Public Policy, 74 WASH U. L.Q. 913, 942 n.163 (1996) (describing the move in the United States towards an all donated blood supply, as encouraged by FDA regulations).
62. See Nussbaum, supra note 13, at 701, 706.
63. See id. at 693 ("ALL of us, with the exception of the independently wealthy and the unemployed, take money for the use of our body.");
64. Salbu, supra note 31, at 944-46.
65. See, e.g., Rao, supra note 2, at 455-56 (arguing that a rule forbidding property rights in body parts when the parts are internal to a person, but permitting property rights in body parts when detached from a person, would fit best with our intuitions).
66. E.g., sources cited supra note 22.
67. See GOODWIN, supra note 15, at 198: Slavery's pernicious effect is not exclusively derived from a market evaluation in the human body. Indeed, many slaves were given away as gifts.... The villainy of slavery is best characterized by the creation of a chattel system wherein Black men, women, and children were explicitly and exclusively exploited; stripped of their humanity, tortured, bred, denied legal protection, forbidden educational instruction and religious expression.
68. Martyn Evans, The Utility of the Body, in OWNERSHIP OF THE HUMAN BODY: PHILOSOPHICAL CONSIDERATIONS ON THE USE OF THE HUMAN BODY AND ITS PARTS IN HEALTHCARE 207, 207 (Henk A.M.J. Ten Have & Jos V.M. Welie eds., 1998).
69. Sarah S. Jain, The Prosthetic Imagination: Enabling and Disabling the Prosthesis Trope, 24 Sa., TECH., & HUM. VALUES 31, 32 (1999) (internal quotation marks omitted)
70. (quoting Elaine Scarry, The Merging of Bodies and Artifacts in the Social Contract, in CULTURE ON THE BRINK 85, 97 (Gretchen Bender & Timothy Druckery eds., 1994)).
71. Nussbaum, supra note 13, at 704 (constructing this example).
72. UMBERTO ECO, Lumbar Thought, in TRAVELS IN HYPERREAUTY 191, 193-95 (William Weaver trans., Harcourt Brace Jovanovich 1986) (1983).
73. An End User License Agreement is a contract that dictates the terms under which an enduser can use software or a device. Users often become a party to these contracts without reading them due to their length and form.
74. See Kevin W. Grierson, Annotation, Enforceability of " Clickwrap" or "Shrinkwrap" Agreements Common in Computer Software, Hardware, and Internet Transactions, 106 A.L.R. 5TH 309, § 2(a) (2003).
75. See Samuel R. Bagenstos, Subordination, Stigma, and "Disability, " 86 VA. L. REV. 397, 429 (2000) (describing an acceptance of the social model of disability in the United States, in which "disability is attributed primarily to a disabling environment instead of bodily defects or deficiencies" (internal quotation marks omitted)
76. (quoting Harlan Hahn, Feminist Perspectives, Disability, Sexuality and Law: New Issues and Agendas, 4 S. CAL. REV. L, & WOMEN'S STUD. 97, 101 (1994));
77. Mairian Corker & Tom Shakespeare, Mapping the Terrain, in DISABILITY/POSTMODERNITY: EMBODYING DISABILITY THEORY 1, 2-3 (Mairian Corker & Tom Shakespeare eds., 2002) (describing the shift from medical model of disability to social model, in which activists raised awareness of the fact that impairment alone does not cause disability, but rather social and economic conditions overlaying impairment).
78. See sources cited supra note 42.
79. For instance, an easement by necessity can be required to ensure that another's parcel of land has road access. E.g., Wilson v. Smith, 197 S.E.2d 23, 25 (N.C. Ct. App. 1973) ("A way of necessity arises when one grants a parcel of land surrounded by his other land, or when the grantee has no access to it except over the land retained by the grantor or land owned by a stranger.").
80. E.g., JAMES HUGHES, CITIZEN CYBORG: WHY DEMOCRATIC SOCIETIES MUST RESPOND TO THE REDESIGNED HUMAN OF THE FUTURE 73, 229-31 (2004) (arguing for "personhood-based 'cyborg citizenship' versus 'human racism,'" yet nevertheless asserting that personhood requires self-ownership of bodies);
81. NUSSBAUM supra note 1, at 78 (including "bodily integrity" in her list of Capabilities).
82. See DONNA J. HARAWAY, A Cyborg Manifesto: Science, Technology, and Socialist-Feminism in the Late Twentieth Century, in SIMIANS, CYBORGS, AND WOMEN: THE REINVENTION OF NATURE 149, 150 (1991);
83. Jain, supra note 38, at 43.
84. See, e.g., sources cited supra notes 3, 21, 22.
85. E.g., Brian Mockenhaupt, Rebuilding: Bryan Anderson, ESQUIRE MAG., Mar. 2008, at 184, available at 2008 WLNR 25444912.
86. See generally Michael D. Rivard, Toward a General Theory of Constitutional Personhood: A Theory of Constitutional Personhood for Transgenic Humanoid Species, 39 UCLA L. REV. 1425, 1434-41 (1992) (describing processes for creating transgenic species).
87. See Elizabeth L. DeCoux, Pretenders to the Throne: A First Amendment Analysis of the Property Status of Animals, 18 FORDHAM ENVTL. L, REV. 185, 220-21 (2007) (describing the successful implantation of human embryonic stem cells into mouse embryos, and the resulting mousehuman hybrids, which had a small amount of human brain cells fully integrated into their brains otherwise made up of native mouse brain cells).
88. Some argue that humans are "embodied in an extended technological world," rather than existing as "distinct beings in an antagonistic relationship with their surroundings." Robert Pepperell, The Posthuman Manifesto, KRITIKOS, Feb. 2009, http://intertheory.org/peppereil.htm;
89. cf. HARAWAY, supra note 46, at 150 (attempting to disrupt the naturalization of the human body and of gender, but without seeking to be innocent or transcendent of the systems of power and coercion that socially construct gender and the body).
90. See supra text accompanying note 42.
91. See Mockenhaupt, supra note 48, at 184 ("Funding for prosthetics projects has swelled significantly over the past six years. The Defense Advanced Research Projects Agency, or DARPA, is bankrolling one of the most ambitious programs, the $85 million Revolutionizing Prosthetics project to build a prosthetic arm that matches the human arm in functionality by next year.... The fusion of man and machine is upon us, the extraordinary enabling the everyday.").
92. Benedict Carey, Monkey Thinks, Moving Artificial Arms as Own, N.Y. TIMES, May 29, 2008, at Al, available at 2008 WLNR 10097697.
93. See DeCoux, supra note 50, at 222.
94. Id.
95. Politicians have referred to animal-human hybrids, probably meaning both chimeras and transgenic species, where chimeras contain cells from two different entities, and transgenic beings contain DNA from two different entities. See Stephen Munzer, Human-Nonhuman Chimeras in Embryonic Stem Cell Research, 21 HARV. J.L. & TECH. 123, 124 (2007) (providing these definitions).
96. See Bagley, supra note 2, at 505-06.
97. Id. at 506-07.
98. See, e.g., id. at 502, 511-12.
99. Indeed, in 2006, Cardozo Law School hosted an entire twoday conference on the legal, moral, and policy implications of patenting human DNA, human-animal hybrids, and other biotechnological innovations. Numerous law professors, government patent lawyers, and others presented arguments at this conference, at which Bagley was the keynote speaker.
100. See Margo A. Bagley, Keynote Address at the Benjamin N. Cardozo School of Law Patenting People Conference (Nov. 12, 2006).
101. Cf. Bagley, supra note 2, at 506 (describing a patented method for producing human organs from pigs).
102. See HUGHES, supra note 45, at 231 (proposing regulation to prevent this from happening).
103. See Bagley, supra note 2, at 473.
104. E.g., id. at 510 (quoting with approval Professor Leon Kass, a religiously-inspired bioethicist and former chair of President George W. Bush's Council on Bioethics).
105. See id. at 496-97.
106. As an example of this approach, the U.S. Patent and Trademark Office initially rejected a patent application for a HuMouse because it "embraces a human being," arguing that the Thirteenth Amendment would prohibit such a patent. Gregory R. Hagen & Sébastien A. Gittens, Patenting Part-Human Chimeras, Transgenics and Stem Cells for Transplantation in the United States, Canada, and Europe, 14 RICH. J.L. & TECH. 11,34,49 (2008).
107. Though they are not libertarians, major proponents of the transhumanist movement, which supports the use of technology to make humans "better than well," have cited this argument from autonomy in support of permitting such technologies. HUGHES,
108. supra note 45, at 207, 229
109. (arguing that "[o]nly beings with personhood are exempt from being property, since we each own ourselves and can't be alienated from ownership of ourselves," and noting, with approval, "disparate movements, like transgender rights, working to radicalize our control over our own bodies");
110. Nick Bostrom, In Defense of Posthuman Dignity, 19 BIOETHICS 202, 210 (2005) ("A liberal democracy should normally permit incursions into morphological and reproductive freedoms only in cases where somebody is abusing these freedoms to harm another person.");
111. cf. Volokh, supra note 4, at 1835 (arguing for a right to sell and buy organs rooted in the right to self defense).
112. See also Bonnie Steinbock, Sperm as Property, 6 STAN. L. & POL'Y REV. 57, 66 (1995) (arguing that "individual autonomy should prevail, and sperm is correctly regarded as property that can be bequeathed by will");
113. Mary Taylor Danforth, Current Topic in Law and Policy, Cells, Sales, and Royalties: The Patient's Right to a Portion of the Profits, 6 YALE L, & POL'Y REV. 179, 191-95 (1988) ("Th[e] property-based notion of control over one's name or likeness should be extended to one's body parts. The common law recognizes the individual's exclusive right to use what is inherently personal, and nothing is more personal than one's own genetic material.");
114. Roy Hardiman, Comment, Toward the Right of Commerciality: Recognizing Property Rights in the Commercial Value of Human Tissue, 34 UCLA L. REV. 207, 218 (1986) (arguing that "human tissue possesses characteristics that satisfy many of the criteria for establishing rights in tangible property").
115. See sources cited supra note 67.
116. E.g., DAVID A. J. RICHARDS, SEX, DRUGS, DEATH, AND THE LAW 84-127 (1982) (arguing that properly understood autonomy would lead to permission for prostitution);
117. cf. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 139 (3d ed. 1986) (suggesting that a market in babies could benefit those who can bear children but do not want them and those who cannot bear children but want them).
118. See sources cited supra note 67.
119. See WILLIAM BLACKSTONE, 2 COMMENTARIES *2;
120. see also Robert P. Burns, Blackstone's Theory of the "Absolute" Rights of Property, 54 U. CIN. L. REV. 67, 69 (1985) (arguing that the reading of Blackstone as promoting "absolute" property rights is overbroad, and that he believed property was "'independent of civil institutions' only in the most theoretical sense").
121. See Kristen A. Carpenter, Sonia K. Katyal & Angela R. Riley, In Defense of Property, 118 YALE L.J. 1022, 1026-29 (2009) (contrasting the classic ownership model of property with more modern relational models of property, such as a proposed stewardship model, that would be more descriptively and normatively appropriate to recognizing cultural property claims);
122. David Fagundes, Property Rhetoric and the Public Domain, 94 MINN. L. REV. (forthcoming 2010) (manuscript at 25, on file with author) (describing the popular myth of property as dominion over things, and contrasting it to the more accurate conception of property as a "system that structures social relationships with resources").
123. See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710, 742 (1917):
124. In opposition to the ideas embodied in the passages just given, it is submitted that instead of there being a single right with a single correlative duty resting on all the persons against whom the right avails, there are many separate and distinct rights, actual and potential, each one of which has a correlative duty resting upon some one person.
125. See, e.g., Aldred's Case, 9 Co. Rep. 57b, 58a (1610) (finding the building of a pig sty too close to a neighbor's house to violate the neighbor's rights).
126. See, e.g., Wilson v. Smith, 197 S.E.2d 23, 25 (N.C. Ct. App. 1973) ("A way of necessity arises when one grants a parcel of land surrounded by his other land, or when the grantee has no access to it except over the land retained by the grantor or land owned by a stranger.").
127. For instance, regulation that limits the use of property is not considered a "taking" in the United States even if discrete segments of the property rights are essentially removed, such as ability to exploit airspace above land. See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 130 (1978). Nor, for instance, has labor regulation been considered to violate fundamental substantive due process rights to property or contract in the United States since 1937.
128. See, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 49 (1937) (upholding the National Labor Relations Act).
129. See Wilson, 197 S.E.2d at 26; Aldred's Case, 9 Co. Rep. at 58b.
130. See sources cited supra note 13.
131. One of the best accounts of this form, and from which we can learn a great deal, is Martha Nussbaum's development and defense of a universal list of basic human capabilities. But her work demonstrates that rigorous attempts to define universal dignitarian human capabilities or rights rely on "intuition," which she acknowledges is subject to "distortion. " Our intuitions about what is minimally required for a life with dignity are subject to our own biases. For this reason, Nussbaum is careful to describe the list as contingent and tentative, and also to allow for mechanisms of cultural change that could help us revise the list, such as being able to imagine and reason.
132. MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP 83, 174-75 (2006).
133. E.g., Vacco v. Quill, 521 U.S. 793, 807 (1997) (clarifying that the right to refuse medical treatment rests in the right "to bodily integrity and freedom from unwanted touching");
134. Washington v. Glucksberg, 521 U.S. 702, 720 (1997)
135. (citing Rochin v. California, 342 U.S. 165, 172 (1952) (recognizing the right to bodily integrity);
136. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 278 (1990) (recognizing "a general liberty interest in refusing medical treatment");
137. NUSSBAUM, supra note 1, at 78 (including it within her list of capabilities);
138. see also MODEL PENAL CODE § 211.1 (1980) (consolidating battery, mayhem, and assault into a single crime);
139. RESTATEMENT (SECOND) OF TORTS §§ 13, 18, 21 (1965) (defining battery and assault). 81. E.g., Vacco, 521 U.S. at 808 ("By permitting everyone to refuse unwanted medical treatment while prohibiting anyone from assisting a suicide, New York law follows a longstanding and rational distinction.").
140. Henry Hansmann, The Economics and Ethics of Markets for Human Organs, 14 J. HEALTH POL, POL'Y & L. 57,59 (1989) (internal quotation marks omitted)
141. (quoting U.S. DEP'T OF HEALTH & HUMAN SERVS., supra note 3, at 96).
142. Kevin W. Wildes, Libertarianism and Ownership of the Human Body, in OWNERSHIP OF THE HUMAN BODY,
143. supra note 37, at 143, 152
144. (quoting U.S. DEP'T OF HEALTH & HUMAN SERVS., supra note 3, at 96).
145. E.g., Transplantation of Human Organs Act, No. 42 of 1994 (India);
146. Human Tissue Gift Act, R.S.B.C. 1996, ch. 211 §10 (Can.).
147. See generally WORLD HEALTH ORG., HUMAN ORGAN TRANSPLANTATION: A REPORT ON DEVELOPMENTS UNDER THE AUSPICES OF WHO, 1987-1991, at 15-26 (1991) (surveying and listing countries that ban organ sales and those that do not).
148. See Wildes, supra note 83, at 147 ("Much of the effort to regulate and constrain the use of the human body is embedded in a moral language of 'sanctity', 'dignity', 'justice', 'integrity', and 'solidarity' that assumes particular moral commitments.").
149. Lucas, supra note 22, at 248, 252.
150. See FADWA EL GUINDI, VEIL: MODESTY, PRIVACY AND RESISTANCE 13 (1999) (discussing the evolution of differing views pertaining to veiling practices);
151. cf. CAROLYN G. HEILBRUN, THE EDUCATION OF A WOMAN: THE LIFE OF GLORIA STEINEM, at xviii (1995) (describing Steinem's "feminis[m] in a miniskirt" as a walking "contradiction").
152. Leon R. Kass, The Wisdom of Repugnance, THE NEW REPUBLIC, June 2, 1997, available at http://www.catholiceducation.org/articles/medical-ethics/me0006. html.
153. LEON R. KASS, THE HUNGRY SOUL: EATING AND THE PERFECTING OF OUR NATURE 148-149 (1994): Worst of all from this point of view are those more uncivilized forms of eating, like licking an ice cream cone - a catlike activity that has been made acceptable in informal America but that still offends those who know why eating in public is offensive. I fear that I may by this remark lose the sympathy of many readers, people who will condescendingly regard as quaint or even priggish the . . . view that eating in the street is for dogs. . . . This doglike feeding, if one must engage in it, ought to be kept from public view, where, even if we feel no shame, others are compelled to witness our shameful behavior.
154. For instance, United States law permits voluntary organ donation while forbidding organ sales. 42 U.S.C.A. § 274e(a) (West 2009).
155. See id.;
156. see also sources cited supra note 19.
157. E.g., SOUND AND FURY (PBS 2000) (documenting a deaf child's wish to obtain a cochlear implant in defiance of her deaf parents' wishes).
158. George W. Bush, Address Before a Joint Session of Congress on the State of the Union (Jan. 31,2006) (transcript available at http://www.c-span.org/ executive/transcript.asp?cat-current&code=bush-admin&year=2006).
159. See sources cited supra note 19.
160. Stem cell research is widely discussed for its potential to lead to the development of treatments for diseases, and animal-human hybrids might be used to develop organs for transplantation into humans.
161. See Bagley, supra note 2, at 472, 520.
162. See Kass, supra note 88.
163. E.g., Volokh, supra note 4, at 1835 (arguing that forbidding organ sales violates the right to self defense of those who need organs).
164. See Jean Bethke Elshtain, The Body and the Quest for Control, in IS HUMAN NATURE OBSOLETE?: GENETICS, BIOENGINEERING, AND THE FUTURE OF THE HUMAN CONDITION 155, 161 (Harold W. Baillie & Timothy K. Casey eds., 2005).
165. See, e.g., id. at 155-61.
166. Id. at 161 (arguing that parents who chose not to abort children with Down's Syndrome and other disabilities would be viewed as having made a choice to do so that society need not support).
167. See e.g., Jennifer S. Geetter, Coding for Change: The Power of the Human Genome to Transform the American Health Insurance System, 28 AM. J.L, & MED. 1, 27 (2002) ("The very phrase 'wrongful birth' suggests that the birth of the disabled child was wrong and should have been prevented." (internal quotation marks omitted)
168. (quoting Taylor v. Kurapati, 600 N.W.2d 670, 688-91 (Mich. CL App. 1999))).
169. Aside from ignoring that cultural pressure to perform a heterosexual identity is, and in many cultures has been, enough to crush and subordinate lesbian, gay, and bisexual practice and identity, this argument also fails to recognize that some persons would prefer to have gay children or to be gay, and would choose those options.
170. See generally Eve Kosofsky Sedgwick, How to Bring Your Kids up Gay, 29 SOC. TEXT 18 (1991).
171. See HUGHES, supra note 45, at 130-31 (describing the Center for Genetics and Society's argument that cloning and the creation of inheritable genetic modifications will lead to such a situation).
172. E.g., Elshtain, supra note 98, at 163 ("[S]urroundings in which bodies are situated fades as the body gets enshrined as a kind of messianic project."). 1 05. See Corker & Shakespeare, supra note 42, at 3 (describing the shift from the medical model of disability to the social model, in which activists raised awareness of the fact that impairment alone does not cause disability, but rather social and economic conditions overlaying impairment
173. Elshtain, supra note 100, at 167.
174. I use the term GID because it is a well-recognized term, not to express any agreement with the medical characterization of many transgender persons as having a "disorder."
175. See Dean Spade, Resisting Medicine, Re/modeling Gender, 18 BERKELEY WOMEN'S L.J. 15, 19-21 (2003).
176. 08. Judith Butler, Imitation and Gender Insubordination, in THE LESBIAN AND GAY STUDIES READER 307,313-14,318 (Henry Abelove et al. eds., 1993).
177. Elshtain, supra note 100, at 167.
178. In the documentary film Sound and Fury, a young child's deaf parents forbade her from receiving a cochlear implant, after much debate with other members of the deaf community and both hearing-impaired and non-hearing-impaired family members. They determined that the implant would be a rejection of the rich and valuable deaf community they were a part of and that was often discriminated against unjustly. SOUND AND FURY (PBS 2000). While views on the parents' decision may vary, there is something tragic in the circumstances that led to the parents being unable to value both the deaf community and their daughter's desire to experience what hearing is like. 111. Eg., Leon R. Kass, The End of Courtship (pt. 1), BOUNDLESS, Oct. 13, 2005, http://www.boundless. org/2005/articles/a0001154.cfm (arguing that women should be modest and mothers).
179. . See MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP 96-106 (2006).
180. Cf. Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 800 (1989) (arguing that control of the body is "formative")
181. . 114. See Radin, Property and Personhood, supra note 20, at 959-61.
182. See Gonzales v. Raich, 545 U.S. 1, 7 (2005) (noting, in the context of a case upholding the Controlled Substance Act's prohibition on possession of marijuana as a valid exercise of Congress's commerce clause authority, that plaintiffs "physician believes that forgoing cannabis treatments would certainly cause [her] excruciating pain and could very well prove fatal").
183. Rubenfeld, supra note 113, at 788-89: Yet power need not be directed at the undeveloped mind to have this effect; it may also do so if directed at the fully-developed body.... Indeed, bodily control may be the more effective medium to the extent that thought cannot, as it were, meet such control head on, as it might when confronted by an idea that it is told to accept. . .. [I]ts effect can be formative, shaping identity at a point where intellectual resistance cannot meet it. 117. See ELAINE SCARRY, THE BODY IN PAIN: THE MAKING AND UNMAKING OF THE WORLD 37-38 (1985).
184. See MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 209-222
185. (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1977);
186. see also Rubenfeld, supra note 113, at 770-81 (1976) (making this point with respect to sexuality and Citing Foucault's The History of Sexuality).
187. See supra text accompanying notes 36-39.
188. Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1084 (9th Cir. 2004), aff'd, 444 F.3d 1104 (9th Cir. 2006) (en banc).
189. See supra note 40 and accompanying text.
190. See Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, arts. IV, XX U.N. Doc. A/RES/61/106 (Jan. 24, 2007) (stating obligations of parties to promote research into and affordable access to aids for persons with disabilities, including mobility aids);
191. cf. Dean Spade, Documenting Gender, 59 HASTINGS LJ. 731, 782-91 (2008) (documenting the double bind created by, on the one hand, the exclusion of gender confirming medical care such as sex-reassignment surgery or hormone therapy from Medicaid and other state funded health coverage, and, on the other hand, state demands that transgender persons obtain such treatment in order to legitimize their status and be appropriately gender classified).
192. See FOUCAULT, supra note 118, at 194.
193. Id.;
194. see also MICHEL FOUCAULT, THE HISTORY OF SEXUALITY 159 (Robert Hurley trans., Pantheon Books 1978) (1976) ("The irony of this deployment is in having us believe that our 'liberation' is in the balance.").
195. See generally AMARTYA SEN, DEVELOPMENT AS FREEDOM 131-37 (1999).
196. NUSSBAUM, supra note 1, at 74-75.
197. Id. at 78.
198. See id. at 87.
199. Id. at 80.
200. Id. at 91.
201. See NUSSBAUM, supra note 79, at 167.
202. Id. at 78-79:
203. I consider the list as open-ended and subject to ongoing revision and rethinking, in the way that any society's account of its most fundamental entitlements is always subject to supplementation (or deletion). I also insist... that the items ... be specified in a somewhat abstract and general way, precisely in order to leave room for the activities of specifying and deliberating by citizens and their legislatures and courts.
204. Id. at 174-75.
205. Id. at 78 ("The capabilities approach is fully universal .... The approach is in this way similar to the international human rights approach ...."). It is important to note, though, that Nuss-baum does not argue that the universal nature of the list "license[s] intervention with the affairs of a state that does not recognize them."
206. Id. at 80.
207. She states that "military and economic sanctions are justified only in certain very grave circumstances."
208. Id .
209. See ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 26 (1948) (arguing that access to unconstrained information and ideas is necessary to an informed populace and the functioning of democracy ).
210. See Kahan, supra note 14, at 115 (arguing that even when consciously justified in secular, pluralist terms, laws will often be driven by the expression of cultural values and repression of deviant moral values).
211. Ramachandran, supra note 9, at 18.
212. D.A. LLOYD THOMAS, IN DEFENCE OF LIBERALISM 36 (1988) ("The case for a liberal set of individual rights does not rest on the assumption that we already know what is intrinsically valuable. Rather, it rests on a plausible claim about how it is possible to have better formed beliefs about what is valuable.").
213. The idea of cultural velocity as a ground for deriving countermajoritarian rights shares similarities with a consequentialist argument made by David Lloyd Thomas in In Defence of Liberalism.
214. See id.
215. Thomas defends liberalism on utilitarian grounds, but on a unique form of utilitarianism that he calls "experimental" utilitarianism. He rejects traditional utilitarianism because it would require defining what is of utility - what is good, or of value, and he argues that we do not know the answer to that question. However, he argues that we can defend those liberal rights, which would contribute to discovering what is of value, by permitting experiments, in a sense, in what should be valued.
216. Id at 36-37.
217. In a future piece, I will more thoroughly explore the concept of cultural velocity as a justification for human rights more generally. For purposes of this article, however, it is sufficient to note that such a concept could explain or justify rights in bodies, but not rights over the "integrity" of bodies.
218. See Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N.Y.U. 1, REV. 1, 3 (2004).
219. See Ramachandran, supra note 9, at 31-33.
220. Id. at 32.
221. Id. For a similar conception of identity as "choice" rather than as "discovered" fact,
222. see AMARTYA SEN, THE ARGUMENTATIVE INDIAN: WRITINGS ON INDIAN HISTORY, CULTURE AND IDENTITY 350-52 (2005).
223. Ramachandran, supra note 9, at 93.
224. See FOUCAULT, supra note 118, at 289.
225. Cf. Judith Butler, "Appearances Aside, " 88 CAL. L. REV. 55,63 (2000).
226. See Ramachandran, supra note 9, at 22 (citing Butler, supra note 108, at 307).
227. As Seidman has explained in an illuminating history of queer theory's developmenL "[t]o the extent... that poststructuralist perspectives ... [has become] a politics of the disruptive gesture, they lack coherence." STEVEN SEIDMAN, DIFFERENCE TROUBLES: QUEERING SOCIAL THEORY AND SEXUAL POLITICS 136 (1997). As he has also noted, "Underlying this politics of subversion is a vague notion that this will encourage new, affirmative forms of personal and social life, although poststructuralists are reluctant to name their social vision."
228. Id. at 134.
229. See Butler, supra note 147, at 63: For this challenge to take place, it must be possible for a person whose appearance calls the category of the person into question to enter into the field of appearance precisely as a person.... [A] power that is 'had' to the extent that such a person is not first defeated by the powers of discrimination.
230. See Ramachandran, supra note 9, at 25, 33.
231. Cf. Angela R. Riley, Good (Native) Governance, 107 COLUM. L. REV. 1049, 1078 (2007). Riley has argued that good governance need not look like liberal democracy in every cultural context, but has still articulated some core components of good governance that are broadly applicable to many sovereigns, such as the ability to dissent and the ability to exit.
232. Id at 1061-80.
233. The cultural velocity principle would likely result, in virtually every society it were applied to, in protection of the formal ability to dissent and to exit. I believe, however, that these formal abilities would rarely be quite enough to ensure a significant amount of cultural velocity - the amount required to ensure that a culture can evolve and meet new challenges. Room to develop the kinds of different identities and affiliations that lead to the desire to dissent and exit is required, in my view.
234. See Ramachandran, supra note 9, at 25.
235. Id. at 61.
236. In fact, I proposed a categorical statutory exception for these professions. Id. at 63.
237. NUSSBAUM, supra note 1, at 78-79 (including "senses, imagination, and thought" on the list of capabilities, as well as "practical reason").
238. In fact, it is entirely within the realm of possibility that I will be forced to change my conclusion about freedom of dress within my lifetime. Because working from home is becoming more and more common, people are spending less time interacting with each other visually, and more time online. If this trend develops dramatically, the importance of dress both as a means of forming an identity, and as an impetus of cultural velocity, might diminish in the future.
239. See Christine Jolis, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1477-78 (1998) (describing the use of mental heuristics as an example of bounded rationality).
240. See Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489, 1508 (2005) (describing racial schémas, or meanings, as developing not merely in response to data perceived by one who adopts the schema, but also growing out of complicated cultural meanings).
241. AMERICAN HERITAGE DICTIONARY 919 (4th ed. 2000).
242. See Jolis et al., supra note 158, at 1477-78;
243. Kang, supra note 159, at 1508.
244. See Shell, supra note 3, at 333-34, 345-47 (discussing Kant's "concept of human dignity" and bioethics in stem cell research).
245. In fact, the distinction between the natural or immutable and the artificial or choice-based aspects of our bodies is a slippery one. Skin color, genital shape, eye color, and hair texture are all alterable, with varying levels of effort. Body weight is alterable, but sometimes only with great effort and social support. Tattoos are close to unremovable. Hip implants are removable, but only at great medical cost to those who have them, and once implanted, they are internal to the owner. Are scars from accidents "natural," or "artificial"? What about scars that are deliberately obtained as a form of cosmetic body modification? Scars that result from surgery? Does it matter if the surgery was defined as "elective" or "medically necessary"? Whose definition for those categories should we use?
246. Ramachandran, supra note 9, at 39.
247. See KARLYNE ANSPACH, THE WHY OF FASHION 329-30 (1967) (describing the Bloomerism movement to replace skirts with pants);
248. CHARLOTTE PERKINS GILMAN, The Force Called Fashion, in THE DRESS OF WOMEN: A CRITICAL INTRODUCTION TO THE SYMBOLISM AND SOCIOLOGY OF CLOTHING 107, 116-17, (Michael R. Hill & Mary Jo Deegan eds., 2002);
249. CHARLOTTE PERKINS GILMAN, Hope and Comfort, in THE DRESS OF WOMEN,
250. supra, at 131, 133-41 (discussing the oppressive nature of fashion).
251. See Nussbaum, supra note 13, at 693-94 (pointing out that professorial labor, like prostitution, involves contracting out the body).
252. See, e.g., MARGARET A. MCLAREN, FEMINISM, FOUCAULT, AND EMBODIED SUBJECTIVITY 2-3, 14, 83-91 (2002).
253. See, e.g., id. at 83-84.
254. Uffe J. Jensen, Property, Rights, and the Body: The Danish Context - A Democratic Ethics or Recourse to Abstract Right?, in OWNERSHIP OF THE HUMAN BODY,
255. supra note 37, at 173, 180-81
256. (alteration in original) (quoting HARRY BROD, HEGEL'S PHILOSOPHY OF POLITICS 69 (1992)).
257. This is not to say that the uploaded consciousness's difference from us would mean it should be treated differently. That question goes to whether legal personhood should be granted to so-called artificial intelligences.
258. See Lawrence B. Solum, Legal Personhood for Artificial Intelligences, 70 N.C. L. REV. 1231, 1231-32 (1992) (exploring this question). The point is simply that current persons have embodied subjectivities, and we should therefore consider those embodied subjectivities when we think about what rights to grant persons, and how best to fulfill them. It may be that disembodied subjectivities wouldn't need the same rights that embodied subjectivities have. This potentially unequal treatment should not trouble us, as this would simply be a case of treating unlike persons differently, rather than treating like persons differently.
259. HUMBERTO R. MATURANA & FRANCISCO J. VARELA, THE TREE OF KNOWLEDGE: THE BIOLOGICAL ROOTS OF HUMAN UNDERSTANDING 18 (rev. ed. 1998).
260. TERRENCE W. DEACON, THE SYMBOLIC SPECIES: THE CO-EVOLUTION OF LANGUAGE AND THE BRAIN 424 (1997).
261. Rubenfeld, supra note 113, at 800-01.
262. Quinn Norton, A Sixth Sense for a Wired World, WIRED.COM, June 7, 2006, http://www.wired.eom/gadgets/mods/news/2006/06/71087.
263. See generally PEPPERELL, the Posthuman Manifesto, supra note 51.
264. It may even be the fact that subjectivities are embodied that has partially led to the frequency with which cultures treat the body as a primary site of identity expression, formation, and reformation.
265. 77. See Stephen R. Munzer, Property as Social Relations, in NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY 36, 46-52 (2001) (distinguishing between coercion, exploitation, the use of power, and coercion as a neutral term and a negative term).
266. Of course, if the sexual activity results in pregnancy, these changes to the biological structure are probably severe enough to dramatically change the subjective experience of the person, even aside from changes in the way the person is treated socially. Thus, we might want to do our best to ensure pregnancy is a state entered into with some forethought.
267. Although in the long term he may have caused them lasting injury.
268. Jain, supra note 38, at 32
269. (quoting Elaine Scarry, The Merging of Bodies and Artifacts in the Social Contract, in CULTURE ON THE BRINK 85, 97 (Gretchen Bender & Timothy Druckery eds., 1994)).
270. Id. at 34
271. (quoting HENRY FORD WITH SAMUEL CROWTHER, MY LIFE AND WORK 105 (Doubleday, Page & Co. 1923) (1922))
272. . 182. See John D'Emilio, Capitalism and Gay Identity, in THE LESBIAN AND GAY STUDIES READER,
273. supra note 108, at 467, 473-75.
274. Lucas, supra note 22, at 252.
275. See Carpenter et al., supra note 72, at 1026-30;
276. Madhavi Sunder, Property in Personhood, in RETHINKING COMMODIFICATION,
277. supra note 22, at 164, 171 ("[T]here may, in fact, be some room for property in personhood claims if they are grounded on more modern understandings of both culture and property.") .
278. See Carol M. Rose, Afterword: Whither Commodification?, in RETHINKING COMMODIFICATIO N,
279. supra note 22, at 402, 404
280. ("Markets seem inappropriate for some things, but then again, maybe markets are pretty useful for exactly the same things."). Rose also discusses the "market's possibilities for novelty, liberty, and self-fashioning - not to speak of money."
281. Id. at 421.
282. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761-62 (1976) (concluding that speech which proposes a commercial transaction is protected by the First Amendment).
283. United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 467 (1995) (holding the government to a high burden to justify its "wholesale deterrent to a broad category of expression by a massive number of potential speakers") .
284. Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 117 (1991) (subjecting Son of Sam law to First Amendment scrutiny because it operated as a "disincentive[] to speak" ).
285. 89. Ramachandran, supra note 9, at 55-56 (using Will and Grace and Queer Eye for the Straight Guy as examples).
286. SCARRY, supra note 117, at 37-38.
287. See Miho Iwakuma, The Body as Embodiment: An Investigation of the Body by MerleauPonty, in DISABILITY/POSTMODERNITY,
288. supra note 42, at 76, 81 (describing the phenomenon of phantom limbs in amputees).
289. Cf Baze v. Rees, 128 S. Ct. 1520, 1530 (2008) (noting that what many forbidden punishments under the Eighth Amendment "had in common was the deliberate infliction of pain for the sake of pain-'superadd[ing]' pain to the death sentence through torture and the like" (alteration in original)).
290. E.g., Vacco v. Quill, 521 U.S. 793, 807 (1997) (clarifying that the right to refuse medical treatment rests in the right "to bodily integrity and freedom from unwanted touching").
291. E.g., Tennessee v. Lane, 541 U.S. 509, 534 (2004) (Souter, J., concurring) (describing the now discredited but "once-pervasive" forced sterilization of persons with disabilities).
292. E.g., In re Sherr v. Northport-East Northport Union Free Seh. Dist., 672 F. Supp. 81, 91 (E.D.N.Y. 1987) (finding that under First Amendment, religious exemption to New York's mandatory inoculation program for school children must be extended to all persons who sincerely hold religious beliefs, and not just persons who are bona fide members of a recognized religious organization).
293. See Roe v. Wade, 410 U.S. 113, 163 ( 1973).
294. Some Supreme Court justices have indicated that they would find constitutional fault with laws that prohibit the administration of pain medication necessary to alleviate great suffering, even in instances where the administration of the medicine is virtually certain to cause death.
295. Washington v. Glucksberg, 521 U.S. 702, 736-737 (1997) (O'Connor, J., concurring) ("The parties and amici agree that in these States a patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death.").
296. Compare Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 278 (1990), with Vacco, 521 U.S. at 807.
297. For instance, the right to obtain an abortion may be limited by health and safety regulations throughout pregnancy. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874-878 (1992).
298. Ramachandran, supra note 9, at 16-17 (describing Supreme Court's denial of certiorari on the issue in the face of a circuit split).
299. Cf. Lawrence v. Texas, 539 U.S. 558, 567 (2003) (finding criminalization of same sex sodomy between consenting adults in private to violate the due process clause of the Fourteenth Amendment).
300. See James Allon Garland, Breaking the Enigma Code: Why the Law has Failed to Recognize Sex as Expressive Conduct Under the First Amendment, and Why Sex Between Men Proves that it Should, 12 L. & SEXUALITY 159, 180-187 (2003) (using the example of relationships between gay men to demonstrate the expressive nature of sex).
301. Katie Hafner, Altered iPhones Freeze up, N.Y. TIMES, Sept. 29, 2007 at Cl, available at 2007 WLNR 19068410 ("Jennifer Bowcock, an Apple spokeswoman, said that when people went to update their software with their computer through iTunes, a warning appeared on the computer screen, making it clear that any unauthorized modifications to the iPhone software violated the agreement that people entered into when they bought the phone.").
302. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 permitted states to stop paying benefits to those otherwise eligible for welfare assistance if the recipient did not engage in qualified work. Pub. L. No.104-193, § 407, 110 Stat. 2105, 2129-2134 (codified as amended at 42 U.S.C. § 607 (2006)).
303. See generally 42 U.S.C. §§ 2000e-1 to -17 (2006).
304. See Cynthia L. Estlund, Working Together: The Workplace, Civil Society, and the Law, 89 GEO. LJ. 1, 17 (2000) ("[E]ven the partial demographic integration that does exist in the workplace yields far more social integration-actual interracial interaction and friendship)-than any other domain of American society.").
305. See Cynthia L Estlund, Free Speech and Due Process in the Workplace, 71 IND. LJ. 101, 112 (1995) ("The workplace functions not only as a self-governing institution and as a regulated institution; it also functions as a crucial intermediate institution that stands between the individual and the state.").
306. See generally 42 U.S.C. §§ 2000e, 3601-3619 (2006).
307. See generally 42 U.S.C. §§ 12101-12213 (2006).
308. I have proposed just this in a prior article, Freedom of Dress.
309. See Ramachandran, supra note 9, at 37-43.
310. Id. at 61-64.
311. The Supreme Court has interpreted the Americans with Disabilities Act ("ADA") such that the protected class of disabled persons it protects is quite narrowly defined. E.g., Sutton v. United Air Lines, Inc., 527 U.S. 471, 488-89 (1999) (finding that severely myopic job applicants were not disabled within meaning of the Act because they could use corrective lenses, and therefore received no protection from discrimination by the defendant employer on the basis of the myopia). The ADA was recently amended, however, to clarify that the coverage should be broad. ADA Amendments Act of 2008, Pub. L. No.110-325, § 4, 122 Stat. 3553, 3555-3556 (codified as amended at 42 U.S.C.A. § 12102 (West 2009)).
312. Spade, supra note 123, at 751-752
313. Id. at 752-753 (describing how a host of laws, including gender documentation requirements even for driver's licenses, create a lack of access to employment and housing, and unsafe conditions at homeless shelters for many transgender persons).
314. The United Nations Convention on The Rights of Persons with Disabilities represents an important move towards welfare rights to certain aids. Section (g) of Article 4 states an obligation of parties to "undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost." GA. Res. 61/106, art. IV, U.N. Doc. A/RES/61/106 (Jan. 24, 2007). Article 20 states that parties "shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities."
315. Id at art. XX. This includes "[f]acilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost."
316. Id.
317. HUGHES, supra note 45, at 214-215
318. Id.: It is unlikely that a future majority of service-providing 'commoners' with more free time, communications and democracy than today would tolerate being lorded over by a dynasty of non-working hereditary capitalists. They would vote to change the system. The trend in the social democracies has been to equalize income by raising the standards of the poorest as high as the economy can bear. In the age of robots, that minimum will be very high. (internal quotation marks omitted)
319. (quoting HANS MORAVEC, ROBOT: MERE MACHINE TO TRANSCENDENT MIND 132 (2000)).
320. United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 468-470 (1995).
321. Indeed, I proposed categorically exempting these jobs from reasonable accommodation of dress requirements.
322. Ramachandran, supra note 9, at 63-64.
323. See Lucas, supra note 22, at 253 ("[I]n our nonideal world some individuals may be limited to a choice between commodified sex and involuntary celibacy.").
324. See generally Elizabeth F. Emens, Intimate Discrimination: The State's Role in the Accidents of Sex and Love, 122 HARV. L. REV. 1307, 1385 (2009) (including information on state subsidies in some countries for the purchase of prostitution services by persons with disabilities).
325. Cf. Lucas, supra note 22, at 261 ("Another benefit of commodification would be that... prostitutes could openly discuss their work, describe its pros and cons .... Customers could frankly discuss their experiences, both in the crass, economic way that commodification critics fear but also in honest terms about... what needs they seek to fill.").
326. See id. at 257-258
327. See Munzer, supra note 57, at 124 (providing definitions of these terms).
328. See, e.g., Bagley, supra note 2, at 546;
329. see also supra notes 50, 60, 62-64, 66 and accompanying text.
330. See NUSSBAUM, supra note 79, at 99, 129 (describing her "conception of the person as a social animal, whose dignity does not derive from an idealized rationality," and also "the advantage of understanding humanity and its diversity that comes from associating with mentally disabled people on terms of mutual respect and reciprocity").
331. See MARY ANN MASON, FROM FATHER'S PROPERTY TO CHILDREN'S RIGHTS: THE HISTORY OF CHILD CUSTODY IN THE UNITED STATES 1-13 (1994) (describing the fathers' custody over children as similar to the master/servant relationship, which involved duties of care, as well as the ability to contract out and profit from a servant's labor).
332. Id. at 12-13.
333. See Dan L. Burk, Patenting Transgenic Human Embryos: A Nonuse Cost Perspective, 30 HOUS. L. REV. 1597, 1648 (1993) ("[T]he holder of a patent for a transgenic human being could presumably prevent others from making, using, or selling such a transgenic human being, but this does not mean that the patent holder could impress the patented person into servitude or bondage.").