New biomedical technologies offer growing opportunities not only to prevent and treat illnesses, but also to change how healthy people think, feel, behave, and appear to others. Controversies over these nontherapeutic practices are a pervasive feature of contemporary American culture, from students on "study drugs" and cops on steroids to skin-lightening by black celebrities and the over-prescription of antidepressants. Yet the diversity of these controversies often masks their common root-namely, disputes about the propriety of using medical technologies as tools for shaping one's identity.
Some observers believe these so-called "enhancement" practices threaten important values, offering unfair advantages to users and undermining their ability to lead "authentic" lives. But existing systems of medical regulation, which were desined to promote the safety of therapeutic treatments and to deter drug abuse, are largely blind to concerns beyond protecting human health. As identity-modifying practices continue to proliferate, calls are growing to restrict access to these technologies on moral grounds.
These proposals overlook the United States' extensive and unfortunate experiences regulating nontherapeutic medical practices to enforce contested conceptions of morality. From Prohibition and the war on drugs to laws restricting contraceptives and abortion procedures, these efforts have been costly, ineffective, and intrusive. They have also interfered with fundamental liberties involving bodily integrity and identity-a fact that is widely recognized in the context of reproduction technologies, but largely overlooked with respect to other medical interventions. Rather than expanding our reliance on contested moral concerns in policing access to medical interventions, the U.S. should purge its existing regulation of morality-based intrusions and recommit itself to protecting human health.
2016 B.Y.U. L. Rev. 501 (2016)