Susan Reid (J.D. Columbia, 2011) has posted to SSRN her working paper “Sex, Drugs, and American Jurisprudence: The Medicalization of Pleasure.” 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 intimacy or the use of endorphin-inducing substances. It speculates that 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 many pleasurable substances and argues that the sexual intimacy cases may provide an effective model for using medicalization to challenge statutes that burden substance use.
The full paper is available here.