Posted by
David C. Innes on Monday, August 10, 2009 8:22:10 PM
Harold Kildow writes: In that 1970's tract of feminist political thought masquerading as a
medical self help book,
women were encouraged to regard their bodies as the battleground where
the forces of reaction--the Establishment patriarchy grounded in
Christianity and capitalism, warred against the progressive,
enlightened socialism of the New Left. The same seminal, revolutionary
moment brought the slogan that helped collapse the important
distinction between what is private and what is public, and what is the
legitimate extent of government control and intrusion into private
lives:
The personal is the political. The Supreme Court
almost at the same time famously derived a right to privacy from the
"emanations of penumbras" of certain of the articles of the Bill of
Rights which finds a right to privacy, and which disallows states from
legislating restrictions on abortion, validating in one way the right
of a woman to her own body (skipping over of course the baby's right to
hers--that, apparently was an emanation not appearing in the particular
penumbra examined by Justice Douglas.)
It is interesting then to
find that same tender concern for the privacy rights of individual
bodies kicked to the curb deep in the legalese of the House bill
conjuring universal, affordable, non-budget busting health care for all
God's children. The bill contemplates boards of experts to advise--no,
rule on--both what treatments are necessary and feasible, and which
citizens are worth spending the republic's limited treasury on.
(Funny--for other purposes, the Treasury is always unlimited--no end to
the Blue Sky projecting for the goodness of what the Congressional
shepherds intend for its little flock, or what the Congress spends on
itself.)
The Congress' insistence on making government the
provider of health services forces the logic of the distortion of the
public/private distinction to its ugly end: your body is not your own,
if the government is paying for its upkeep. It's hard to think of a
deeper intrusion into private right than the loss of control over one's
own health and life, because, well, there isn't one.
Our Bodies, Our Selves
co-author (there were twelve) Nancy Miriam Hawley said of writing the
book that "We weren't encouraged to ask questions, but to depend on the
so-called experts. Not having a say in our own health care frustrated
and angered us. We didn't have the information we needed, so we decided
to find it on our own." This laudable, and I should say,
quintessentially American attitude, helped foster a take-it-back kind
of can-doism recognizable in many aspects as what makes America great
and exceptional. And of course that is exactly what is under attack in
so much of the legislation of this radical left Congress, unleashed
under the aegis of the age of Obama.
It occurs to me that this
is not merely an assault on the Constitution and way of life of these
United States, a solemnly constituted people, although that is serious
enough. It goes beyond the Constitution and self understanding of the
people of the United States as encoded in our official public
documents, all the way to the natural rights philosophy that grounds
the constitution and that self understanding itself. It undercuts the
first principle of freedom, articulated most famously by John Locke in
his theory of labor, property, and freedom. A person has a natural
right to what will sustain his life because he owns his body, his self.
He has absolute dominion (humanly speaking), and property in, his own
person and body. All property right, and all right whatever, follows
from that fact. Personal freedom, personal property, constitutional
government by consent, and the rule of law all begin in this natural
right to one's own self. This is the basis for the well known triad of
Lockean natural rights in the Declaration, of life, liberty, and the
pursuit of happiness (or property, as Locke has it).
The
intrusion into what one may do with one's body, is, like the intrusion
into what one may do with one's property, fraught. There is some State
interest in restricting property rights in the interest of the greater
public good. Pig farms, abattoirs, and salvage yards are not permitted
in residential neighborhoods. Likewise, ingestion of narcotic drugs is
restricted because of the danger to the public from people out of their
minds on them. To the extent that your personal actions or the property
that you control is a threat to the health, safety, or welfare of other
equally endowed rights-holders--that is to say, every other person, it
falls within the province of the public legislation to limit it.
Against such legislation seen to exceed these limits, the Supreme Court
has established a benchmark which must be met or overcome--strict
scrutiny. The Court will apply strict scrutiny to any law thought to
impose an undue burden on any fundamental right, or thought to bring
invidious discrimination to groups or individuals based on race, sex,
religion, and a growing list of things. The restrictions on abortion
that
Roe swept away were thought to impinge just such a
fundamental right--the right of a woman to choose whether or not to
carry a baby to term, not withstanding the state's interest in the
protection of life and the interest in the ongoing generation of
citizens.
Yet now we begin to see legislation restricting what
we consume, starting with trans-fats and tobacco. Sugar, alcohol, and
non-organic milk are soon to follow. If Congress is paying for our
health care, they will certainly not blanch at serving up as laws and
regulations all kinds of good ideas about how we should live. (For a
fuller discussion, go
here) The property we have in our bodies--literally, what is
proper
to us, and us alone--is, under the health care monstrosity being
considered, about to be taken, in much the same way as real property is
taken, via something like eminent domain. The government in such cases
abrogates personal property rights in favor of a public good--new
highway or sewer line needs to run through your yard, so out you
go--thanks for playing.
This seems to be what is in prospect for
our most personal property, our bodies. We will have restrictions on
choice of procedure and drug regimen based on what an expert panel
decides is right (read cheapest) for situations like ours--not even a
revue of the actual case at hand, just categories of cases, rated first
and foremost by age and ability to contribute. Anyone recall just now
the Nazi propaganda initiative against the "useless feeders"--disabled,
retarded, insane, aged, etc? Anyone not full of Aryan health and vigor
was given the heave-ho. But that's really unfair isn't it, to bring in
all those Nazi comparisons. Although they didn't cotton to any natural
rights either did they? Everyone created equal? Capable of self
government? Government by consent? Freedom for self-actualization? I
can hear Hermann Goering cocking his pistol at the very sound of those
ideas.
The natural right basis of our Constitution is to be
overthrown to accommodate the State's spurious interest in equalizing
health outcomes. We will all be made miserable at the same rate by
government employees masquerading as health professionals who give a
damn. Oh, except for Congress. And their staffs of thousands. And the
entire federal workforce. And Hollywood and Silicon Valley elites. And
all unionized workers. (want to rethink that offer of union
representation at your workplace now?) All the rest of us will queue up
and wait for whatever rationed bit of drug therapy or surgical
expertise is left over, and our right of personal decision over what is
most personally proper to us, our bodies, will have been taken under
something very much like the doctrine of eminent domain, where the
State's interests supersedes our own.
Makes you wish for the
timely publication of a good feminist tract regarding personal body
decisions and our right to make them. Oh wait--they've got their
abortions paid for in this thing, so we won't be hearing any objections
from them this time about "experts" or patriarchal intrusion into
personal lives.
If only we had a Court that could look for some more penumbral eminations...
-- Harold Kildow (Ph.D. Fordham University) is associate blogger at
Principalities and Powers.