You might have noticed that prostitution was on my list of things to talk about while blogging on truthonthemarket.Â Had I been blogging a decade ago, both prostitution *and* organ sales would have been on my list.
You see, I have maintained for over a decadeÂ that the Supreme Courtâ€™s plurality opinion in Planned Parenthood v. CaseyÂ supportsÂ both (a) the right to have sex for money and (b) the right to “sell” (using the term loosely)Â an organ.Â (Actually, I have long maintained that significant parts of the Planned Parenthood opinion are as nonsensical as a page from a Dr. Seuss book, but if we take Planned Parenthood v. Casey to mean what it says, it seems to me that the Supreme Court should support the â€œliberty interestâ€? in a womanâ€™s body that allows for sex for money and the selling of an organ, albeit regulated at the state level.)Â
Since at least 1995, I have intended to write a law review article on this topic (to wit, how the Supreme Court inadvertently created this quagmire for themselves with the liberty language loosely lobbedÂ about in Planned Parenthood v. Casey).Â I have obviously not yet gotten to the article, and, over the years, IÂ downgraded my goal from an article taking on both organ commodification and prostitution to an article taking on prostitution.
Imagine my delight, then, to see the WSJ piece by Richard Epstein on page A15, dated May 15th, 2006, titled â€œKidney Beancounters.â€?Â Epstein makes the economic (though not legal) argument for supporting â€œimagination as to how a sensible organ market could be organized.â€?Â His position is that at least testing the market for organs is a sensible response to the current transplant donor drought.Â Todayâ€™s Wall Street Journal (Letters to the Editor page) had several responsive letters to the editor, both in support of Epstein’s piece and against.Â Â ThisÂ is an interesting economicÂ and social policy topic, made all the more interesting when juxtaposed with Planned Parenthood v. Casey, Lawrence v. Texas, andÂ Washington v. Glucksberg.Â Though I doubt this topic will build steam . . . .
Â (Let me be 100% clear â€“ I do not know enough about organÂ transplant issuesÂ to take a stand on the issue of whetherÂ an organ market is a good thing.Â Additionally, this post should not be taken to mean that I support prostitution.Â (For purposes of this post, I am neutral, though I have very strong religious and moral views on the topic outside the academic arena.)Â I do know, however, that, while â€œliberty takes no refuge in a jurisprudence of doubt,â€? weak opinions that are more akin to thinly-veiled policy decisions proffered by the high Court create more problems than they fix.)
Assuming that we should take the words of the plurality opinion in Planned Parenthood seriously (just for the sake of discussion), it says, â€œAbortion is a unique act.â€? It goes on to say, â€œThough abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law.â€? So, all the gobbledygook in the opinion is good for only one unique ride on one unique train. Itâ€™s no good for organ sales and prostitution.