By Richard Glen Boire

Today, the human body is a major site of contestation in the law, whether it be reproductive rights, gay rights, drug testing, or even a run of the mill personal injury case. The development of drugs that will reliably produce targeted changes in a person’s senses, cognition, or emotions, will add an entirely new dimension to ongoing debates about individual rights, public health, and social control. One need only look at the controversy that currently surrounds abortion rights to imagine how our legal system will struggle when questions of pro-choice expand into the realm of thoughts and thought-processes.

As I mentioned on Monday, our legal system has a poor track record when it comes to matters of the mind, especially when these matters raise deeper questions about the nature of a "natural," or "normal," human being.

The law’s knee-jerk reaction to drugs that change thinking is prohibition. In the early 1900s, fourteen states enacted anti-cigarette laws making it a criminal offense to sell – and in some cases, merely possess – tobacco cigarettes. (Nicotine is powerful psychostimulant.) Alcohol prohibition, which began at the state level, culminated in a thirteen year federal prohibition that required nothing less than modifying the United States Constitution both to begin and to end it. And, presently we are in the midst of an ever-growing war on drugs that has filled our prisons, skewed science and medicine, and shredded many of our most fundamental rights.

When new drugs begin to make it possible to safely and reliably boost intelligence, increase empathy, or decrease anti-social ideations, will the courts mandate their use as a condition to granting probation or parole to some offenders? Already, courts require some probationers to take disulfiram, a drug that makes the ingestion of alcohol in any form, extremely unpleasant. From the 1920s through 1970, pursuant to the laws of at least 32 states, more than 60,000 people were deemed "eugenically unfit." Many of these people were involuntarily sterilized, in part because of low scores on intelligence tests. When one of these laws was challenged and the case reached the United States Supreme Court, it was upheld—with Justice Oliver Wendell Holmes smugly proclaiming, "Three generations of imbeciles are enough."

Today, implantable contraceptives, like Norplant, have replaced court ordered sterilization, and the National Institute of Drug Abuse is funding the development of drugs that police the blood-brain barrier, making it impossible for a person to feel the full effects of certain illegal (and legal) drugs. One such "neurocop," SR141716, is already being positioned as a possible probation condition for those convicted of a marijuana offense.

Until 1973, "homosexuality" was listed as a psychiatric disorder in the Diagnostic and Statistical Manual of Mental Disorders (DSM). People who admitted they that were homosexual, or who were "accused" of being gay or lesbian, were subject to involuntary confinement under mental health laws, and subjected to "reparative therapy" designed to convert them into heterosexuals. "Treatment," in addition to counseling, included penile plesthysmograph (electronic shock triggered by penile erection), drugging, and hypnosis. Some state laws even permitted the forcible sterilization of homosexuals. Only in June of this year did the United States Supreme Court rule that laws criminalizing consensual gay sex were unconstitutional.

Helping to guide upcoming law and policy decisions so that they respect the fundamental right to freedom of thought is the focus of the work we’re doing at the Center for Cognitive Liberty & Ethics. If you’re interested in supporting this work, or collaborating in anyway, please e-mail me.

That concludes my guest blogging on Brainwaves. Thanks Zack! If you’d like to continue receiving occasional posts on the topic of cognitive liberty, please subscribe to the CCLE’s low-volume e-mail news list.