TCS Daily

Parlors of Democracy

By William Wilson - June 21, 2006 12:00 AM

"It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."
-- Justice Louis Brandeis, dissent, New State Ice Co v. Liebmann

In Baton Rouge on Saturday, Louisiana Governor Kathleen Blanco signed a controversial law that would effectively ban abortion in the state if and when the Supreme Court overturns Roe v. Wade. A day's drive north into the Sooner state, a much less controversial law passed last month made Oklahoma the fiftieth state to legalize tattooing. One law has no immediate effect and the other is newsworthy solely for being a curious historical footnote. Still, we should take notice, for the two laws together provide a profound signpost at the intersection of law, politics, and future medical practice.

Tattooing, like abortion, is a quasi-medical procedure that raises legitimate public health concerns. More to the point, tattooing, like abortion, is proscribed, even abhorrent, in some religious communities (see Leviticus 19:28 or Sahih Bukhari 3:34:299). Of course, tattooing registers nowhere near abortion on a list of interest group casus belli. That is precisely the point: despite their superficial medical and socio-cultural similarities, tattooing and abortion have taken decidedly different Constitutional and political paths.

The abortion case history is too well documented to repeat here. The brief summary can be stated simply: the Court intervened and all hell broke loose. Later, shakily grounding its Constitutional authority in the Court-created quagmire, Congress got involved with the Partial Birth Abortion Ban Act. Next term, the Court will return to the scene to judge the constitutionality of the PBABA. Regardless of the outcome, we'll most likely get a lot more fighting, but arrive no nearer to a resolution.

Compare the tattoo issue. Seven years after Roe, Minnesota District Judge Harry MacLaughlin ruled as follows in Yurkew v. Sinclair, "The actual process of tattooing is not sufficiently communicative in nature so as to rise to the plateau of important activity encompassed by the First Amendment." The case never climbed the ladder to the Supreme Court and the Court never discovered a right to self-decoration ensconced in the Bill of Rights. Perhaps as a consequence, the U.S. Code has no mention of tattooing and a Pro-Ink/Pro-Epidermis struggle has never surfaced. Tattooing was decided on a state-by-state basis; with Oklahoma's new law, every state has now legalized tattooing.

We can only imagine the fantastic doctrine that would have emerged from a Supreme Court ruling on tattooing. We can be certain that it would have been jurisprudentially hideous -- a universal right of collegians to indelible reminders of eight-month relationships, anyone? In 1968, the Court's first case involving tattoos (as an identifying mark in a criminal case) gave the Court its first and, to date, only opportunity to slip "Born to Raise Hell" into the U.S. Reports. Of course, that phrase now aptly characterizes the Court's -- and the nation's -- painfully prolonged preoccupation with abortion.

This is not to imply that abortion and tattooing are equivalent practically or ethically. The point is that the legal and political treatment of certain procedures may have profound effects on our understanding of their practical and ethical importance. Legal entrenchment and the political spin game open an epistemological black hole from which we may never escape, but consider: Abortion might not have been "ABORTION!"

State-by-state legislation posits real possibilities for resolution in future medical policy matters that pose potentially sensitive moral dilemmas. Medical and genetic technologies have already begun to raise profound questions about basic human values. Scientific capabilities as yet undreamt of will certainly generate more tensions with traditional beliefs and practices. Quick federal answers to these questions could be as disastrous for intelligent public policy deliberation on these concerns as it has been for the abortion debate.

State-by-state tattoo regulation was neither a race to the bottom nor a race to the top. The late arrival of the Oklahoma law shows that it wasn't a race at all. Each state took a methodical, tempered approach; each found a unique, satisfactory middle ground. The Oklahoma law, as with all state regulations of tattooing, is moderately contoured and wisely alert to the dominant health concerns. Indeed, the various state tattoo regulations are strikingly similar (for instance, most states have restrictions for minors). The point merits emphasis: without the aid of Court-conjured penumbra and emanation, free from blindingly extra-Constitutional Congressional intervention, and working independently, the states achieved national consensus, more or less -- but also provided for local idiosyncrasies (Hawaii's facial tattoo provision stands out).

The Oklahoma law also proves what Economics 101 teaches, what the Court should have considered before Roe, and what the Court and Congress must consider before intervening in future controversies: legal doctrines cannot simply create or eliminate supply and demand. To pretend otherwise does not purge tattoos or ensure a right to choose -- South Dakota has no operational abortion clinics, whatever Roe may say -- but rather stultifies meaningful policy consideration and informative dialogue. Prudent regulations developed according to local preferences allow for more informed decision-making by citizens, better health provisions for citizens, and progress in otherwise stagnant, fragmented debates that frustrate the real concerns and desires of all citizens.

This potential for political progress is most important. Oklahomans, by and large, want to allow tattooing; Louisianans, by and large, do not want to allow abortions. The difference is that Oklahoma could change its law to reflect the will of the community as it developed over time. As evidenced by the new law, the opportunity to effect change fostered sensible policy deliberation and a moderate solution. In comparison, Louisiana's new abortion law is an impotent, reactionary response to 30 years of apolitical obstacles -- indeed, the law hangs on a reflex contingency, taking effect only if the Court overturns Roe.

The news curio out of Oklahoma brings hope, if only to the moderate majority, that the opportunities afforded by imminent scientific discovery might not be mired unnecessarily in the ugly, rancorous debate that attends abortion. The federal system designed by the Founders could save us from a host of future fights, could foster reasonable and cautious solutions by citizens and state legislatures according to local and personal interests. There will assuredly be struggles, but they could be productive struggles. On many coming issues, we may even arrive at a relatively national consensus. But we won't get there with unrealistic national decrees blockading local democratic channels.

Will Wilson is a researcher for the American Enterprise Institute's Federalism Project.


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