Studies in Law, Politics, and Society: Volume 73

In this chapter, I suggest that Connecticut’s and other states’ recent discontinuation of civil unions in the name of marriage “equality” marginalizes and demeans marriage – rejecting people who may nonetheless wish to codify their intimate partnerships – for purposes of legal “incidents,” including rights and privileges, like hospital visitation rights, testimonial privilege, inheritance rights, etc. In doing so, I also call for a rejuvenation of the practice of granting civil union licenses in these states.

This study challenges contentions that rights are limiting through an analysis of grassroots rights talk in the LGBTQ (Lesbian, Gay, Bisexual, Trans, and Queer) community in the 1980s. I argue that rights talk can be an important source of constructing community within local, nonmainstream, noninstitutional spaces through a discourse analysis of a forum for LGBTQ community-building in the past: the letters to the editor columns in Gay Community News. This study enhances law and social movement scholarship on the role of rights in social movements by exploring how rights discourse is employed by everyday people in a noninstitutional community-building venue rarely addressed in contemporary research.

Public health programs facilitate access to resources that not only provide individuals’ options but also often foreclose individual preference through prescriptive requirements. This chapter takes two disparate cases from public health – vaccines and family planning –that reveal patterns of inequality in who has access to individual choice and who requires state support to exercise choice. Looking specifically at dynamics of funding and compulsion, this chapter elucidates how reliance on the rhetoric of individual choice as an expression of freedom rewards those with the greatest access to resources and fails to make sure that all members of the community have the resources to shape their own outcomes or to make sure collective health is protected.

Much of the discussion surrounding the antivaccine movement focuses on the decision of parents to not vaccinate their children and the resulting danger posed to others. However, the primary risk is borne by the child left unvaccinated. Although living in a developed country with high vaccination rates provides a certain amount of protection through population immunity, the unvaccinated child is still exposed to a considerably greater risk of preventable diseases than one who is vaccinated. I explore the tension between parental choice and the child’s right to be free of preventable diseases. The chapter’s goal is twofold: to advocate for moving from a dyadic framework – considering the interests of the parents against those of the state – to a triadic one, in which the interests of the child are given as much weight as those of the parent and the state; and to discuss which protections are available, and how they can be improved. Specific legal tools available to protect that child are examined, including tort liability of the parents to the child, whether and to what degree criminal law has a role, under what circumstances parental choice should be overridden, and the role of school immunization requirements in protecting the individual child.

The United States has an uncomfortable relationship with pleasure. Cultural ambivalence is evident in discourses surrounding pleasure and the labeling and treatment of those who act on their desires. Pleasure seeking, generally understood in moral terms, is often medicalized and criminalized (as in the case of pregnancy prevention and drug use), placing questions of how to manage pleasure under the purview of medical and legal actors. At the macrolevel, institutions police pleasure via rules, patterns of action, and logics, while at the microlevel, frontline workers police pleasure via daily decisions about resource distribution. This chapter develops a sociolegal framework for understanding the social control of pleasure by analyzing how two institutions – medicine and criminal justice – police pleasure institutionally and interactionally. Conceptualizing medicine and criminal justice as paternalistic institutions acting as arbiters of morality, I demonstrate how these institutions address two cases of pleasure seeking – drug use and sex – by drawing examples from contemporary drug and reproductive health policy. Section one highlights shared institutional mechanisms of policing pleasure across medicine and criminal justice such as categorization, allocation of professional power, and the structuring of legitimate consequences for pleasure seeking. Section two demonstrates how frontline workers in each field act as moral gatekeepers as they interpret and construct institutional imperatives while exercising discretion about resource allocation in daily practice. The chapter concludes with a discussion of how understanding institutional and interactional policing of pleasure informs sociolegal scholarship about the relationships between medicine and criminal justice and the mechanisms by which institutions and frontline workers act as agents of social control.

Reusing existing data sets of health information for public health or medical research has much to recommend it. Much data repurposing in medical or public health research or practice involves information that has been stripped of individual identifiers but some does not. In some cases, there may have been consent to the reuse but in other cases consent may be absent and people may be entirely unaware of how the data about them are being used. Data sets are also being combined and may contain information with very different sources, consent histories, and individual identifiers. Much of the ethical and policy discussion about the permissibility of data reuse has centered on two questions: for identifiable data, the scope of the original consent and whether the reuse is permissible in light of that scope, and for de-identified data, whether there are unacceptable risks that the data will be reidentified in a manner that is harmful to any data subjects. Prioritizing these questions rests on a picture of the ethics of data use as primarily about respecting the choices of the data subject. We contend that this picture is mistaken; data repurposing, especially when data sets are combined, raises novel questions about the impacts of research on groups and their implications for individuals regarded as falling within these groups. These impacts suggest that the controversies about de-identification or reconsent for reuse are to some extent beside the point. Serious ethical questions are also raised by the inferences that may be drawn about individuals from the research and resulting risks of stigmatization. These risks may arise even when individuals were not part of the original data set being repurposed. Data reuse, repurposing, and recombination may have damaging effects on others not included within the original data sets. These issues of justice for individuals who might be regarded as indirect subjects of research are not even raised by approaches that consider only the implications for or agreement of the original data subject. This chapter argues that health information should be available for reuse, information should be available for use, but in a way that does not yield unexpected surprises, produce direct harm to individuals, or violate warranted trust.