Wednesday, April 27, 2011
Susan Reid has posted Sex, Drugs, and American Jurisprudence: The Medicalization of Pleasure on SSRN. Here is the abstract:
This paper explores the role of medical arguments in cases where courts have overturned statutes that burden pleasure-seeking behavior, such as non-procreative sexual activity or the use of endorphin-inducing substances. It speculates the characterization of the individual interests at stake as medical rather than pleasure-related, and the framing of state interests as moral rather than medical, facilitates the judicial decriminalization of pleasure-seeking behavior. This approach to framing individual and state interests is explored and developed in the context of statutes that burden non-procreative sexual intimacy, including key cases on contraception, abortion, and “obscene devices.” After developing the paradigm of medicalization through the lens of the sexual intimacy cases, the paper investigates the conspicuous absence of any discussion of pleasure in these cases and in legal discourse more generally. Finally, the paper explores the continuing criminalization of endorphin-inducing substances and argues that the use of medicalization in the sexual intimacy cases may provide an effective model for challenging certain statutes that burden substance use.