Clearly many people are concerned about what they perceive as the health risks of the performance enhancements used in sports, and many view the use of enhancements as unethical even if it is not prohibited by the rules of the game. But the health risks tend to be greatly exaggerated by anti-doping crusaders, and there is no convincing reason why the use of biomedical enhancements is inherently unethical. We see that the IOC began to test athletes in 1968 after an amphetamine-associated death in the Tour de France. But why did the IOC act then and not earlier? After all, there had been an amphetamine-related death within the Olympic Games themselves in 1960. Reports of widespread doping in cycling and disenchantment with Juan Samaranch propelled the IOC to create WADA in 1999. But why was it only then that the sports world began to take serious action, when Lord Burghley had sounded the alarm back in 1937? And what continues to fuel rabid anti-doping sentiment, like this rant from Chicago Sun-Times sports columnist Jay Mariotti: “Do you like being ripped off and bamboozled by those you entrust with your daily entertainment? Didn’t think so. So where is the outrage among the paying customers, the consumers directly affected? Where are the demands for reform? Congress cares. Anti-doping crusaders such as Dick Pound care. Do you care?” Finally, why did George W. Bush feel it necessary to take time out of his second State of the Union message to urge the country to “get tough, and to get rid of steroids now”? To explain what is happening, the current anti-doping crusade must be placed in a broader historical context.

The War on Drugs

The first thing to realize is that the anti-doping war is part of the larger War on Drugs. The first rumblings about the use of biomedical enhancements occurred around the same time that the first US drug abuse laws were being enacted in the early 20th century. Fueled by prejudice against Chinese immigrants, the puritanical streak of the Progressive movement, and the economic self-interest of physicians in blocking sales of opiate-containing patent medicines by pharmacists, Congress passed the Harrison Act, restricting the sale of narcotics, and the Volstead Act, prohibiting the sale of alcoholic beverages. Other substance control laws followed: the Narcotic Drug Import/Export Act in 1922, which increased penalties for drug violations and further restricted the importation of opium and coca, and the Heroin Act of 1924, which made the domestic manufacture and possession of heroin illegal.

Nor is it a coincidence that the Olympic drug testing program began in 1968, the same year that Richard Nixon became President with a pledge to suppress the youth-oriented drug culture. The anti-doping war in fact can be seen as an extension of the culture clash between “jocks” and “hippies” that took place during the 1960s, immortalized in films such as Animal House. Nothing threatened the “straight,” patriotic, all-American athlete like the prospect of sports being infiltrated and overrun by drug-crazed “freaks.” This also may help explain why anti-doping bans are so arbitrary—permitting some forms of enhancement such as improved equipment and dietary modification but not others–since many of the same college athletes who taunted the hippies for smoking pot and taking LSD thought nothing about drinking themselves into oblivion every chance they got.

The link between the war against doping and the War on Drugs is plain today in the fact that sports not only tests for performance-enhancing substances, but for recreational drugs. British Olympic gold medalist Mark Lewis-Francis lost his silver medal from the 2005 European Indoor Track-and-Field Championships, for example, after he tested positive for marijuana. A runner with a positive marijuana test was disqualified from the U.S. 400-meter relay team at the Athens Olympics. After testing positive for THC (the active ingredient in pot), Canadian snowboarder Ross Rebagliati lost his Gold medal in snowboarding at the 1998 Nagano Olympics. (It later was restored to him after arbitrators ruled that the IOC did not have a formal agreement with the International Ski Federation to ban the substance.)

The war against doping also was the wedge that the conservatives on the US Supreme Court used to pry open the constitution’s protections against unreasonable search and seizure in order to uphold random recreational drug testing of school children. The Court’s slide into this constitutional cesspool began in 1991, when James Acton, a 7th grader at the Washington Grade School in the tiny logging town of Vernonia, Oregon, decided he wanted to play football. To his and his parents’ surprise, he was told that he could do so only if he underwent drug testing. He would be tested at the beginning of the season, and at random times thereafter. Upon being notified that a test was taking place, James would have to produce a urine specimen at a urinal in the presence of an adult monitor, who would watch and listen for the normal sounds of urination.  (Girls were allowed to use a closed stall while the monitor listened outside, then checked to see that the sample was at body temperature.) The striking fact was that the tests were not for steroids and other performance-enhancing drugs, but marijuana and cocaine. (The school also tested for amphetamines, which are used for performance enhancement, but which were targeted by the school because of their recreational use.)

James and his parents sued the school district to block the testing program. In previous cases, they argued, the United States Supreme Court had made it clear that government entities, including public schools, could not conduct random drug testing. A federal court of appeals sided with the parents, but the Supreme Court disagreed, and held that random testing was permissible so long as the students who were tested were athletes.

How did the fact that the students being tested played sports justify testing them for non-performance-enhancing drugs?  According to the 6 justices who joined in the majority opinion, the testing was necessary in order to ensure the safety of student athletes, since “the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high.” The justices were concerned that illicit drugs could impair the students’ judgment, slow their reaction time, and lessen the perception of pain. They also asserted that the drugs being tested for were particularly dangerous when used during exercise. Citing a single article, the Court claimed that marijuana, as well as amphetamines and cocaine, created significant cardiovascular risks during exercise. The majority also expressed the concern that student athletes were role models for other students, and therefore could induce other students to use illegal drugs. Yet in a dissent in which she was joined by Stevens and Suter, Justice Ginsburg argued convincingly that rationalizing the testing by invoking the dangers of recreational drugs during school athletics was nonsense. School officials had instituted suspicion-less drug testing because of a perceived recreational drug problem at the school, not because of any drug-related sports injuries, and the real reason that they had proposed to only test student athletes was that they correctly thought that this would help the testing program pass constitutional muster. Sure enough, in 2002, the Court abandoned all pretense of linking drug tests to school sports and upheld suspicion-less drug testing for all children involved in any extracurricular activity.

WADA’s inclusion of tests for marijuana has provoked strong opposition from other anti-doping bodies. The British minister for sport, for example, objected that, since WADA was not in the business of “policing society,” “social drugs” that do not enhance performance should be removed from WADA’s list of prohibited substances. WADA’s chairman Dick Pound responded: “Who’s to say that by taking cannabis in a sport like gymnastics, where there is a fear element, you are not giving yourself an advantage by being more relaxed?” Pound later conceded that he couldn’t think of a sport in which marijuana would improve performance. But marijuana had to remain on the WADA list, explained Pound, in order to avoid upsetting the US government, which contributes more than any other country to WADA’s budget, and whose deputy director of national drug control policy at the White House sits on WADA’s board.

The Cold War

The second historical phenomenon that has given the anti-doping movement its strength is the Cold War. International sports competitions, and the Olympics in particular, can reflect ideological rivalries and serve national political objectives. The 1936 Berlin Olympics were orchestrated by Adolph Hitler to showcase the Nazi worldview, and African-American Jesse Owens’ 4 gold medals were seen by many as a blunt refutation of German racial stereotyping. A few weeks after the Russians crushed the Hungarian uprising in 1956, the two countries literally slugged it out at the Melbourne Olympics in a game of water polo. In what became known as “the blood-in-the-water match,” the Hungarians were awarded the victory when the judges stopped the game after the Russian captain punched a Hungarian player in the eye. (After going on to win the gold medal, half the Hungarian water polo team defected to the West.) Then there was the breathtaking US defeat of the Soviet ice hockey team at the 1980 Winter Games at Lake Placid. For the US, this had been a winter of deep discontent. The Iranians were still holding 52 American hostages, and a month earlier, the Soviets had invaded Afghanistan. No one expected the American team to do well, but it fooled everyone, bested the Russians, and went on to beat Finland for the gold medal. After ABC sportscaster Al Michaels ticked off the final seconds of the US-Russian game with the words: “Eleven seconds, you got ten seconds, the countdown going on right now … Morrow up to Silk … five seconds left in the game! Do you believe in miracles? Yes!” the incident became known as “the Miracle on Ice.”

The Cold War not only permeated sports, but the campaign against doping. Opposition to steroids was in part a response by the West to the success of Warsaw bloc doping programs in winning Olympic medals. Nationalism and anti-communism also help explain the vigor of the attacks on China following revelations at the 1998 World Swimming Championships of widespread doping among members of its swim team. In effect, China has replaced East Germany as the target of Western condemnation of state-sponsored doping, which may in part explain the controversy over claims that Chinese swimmer Ye Shiwen used illegal enhancements at the 2012 London Olympics. As one sports anthropologist observed, “when China became a ‘world sports power,’ American journalists found it all too easy to slip China into the slot of the ‘Big Red Machine’ formerly occupied by Eastern Bloc sports teams.”

The Frankenstein Factor

The war against doping undoubtedly also is stimulated by a fear of new biomedical technologies and their infiltration into new spheres of human activity. Medical advances produce unease as well as awe. We marvel at the artificial tissues, joints, and organs developed by biomedical engineers, but we worry about where to draw the line between the “human” and the “robotic.” New reproductive technologies like surrogate wombs, in vitro fertilization, and pre-implantation genetic diagnosis can reduce the frequency of birth defects and allow infertile couples to have children, but we fret over whether they will replace old-fashioned sex.  We hear claims that our growing skill at tinkering with DNA may enable us to reverse the aging process, but our hope at the prospect of postponing death is mixed with trepidation about the impact on the family and the workforce. Transhumanists offer us a vision of a post-human utopia, but Cassandras like Michael Crichton warn us about genetic monstrosities and nanotechnology run amok.

The nostalgia manifested by opponents of doping likewise is in part resistance to the “brave new world” of modern science. We cannot seem to open the sports pages without hearing about new enhancement techniques. The Balco investigation introduced us to “designer” steroids. The 2008 WADA list of prohibited substances includes for the first time “selective androgen receptor modulators” and “myostatin inhibitors.” WADA is still unsure about whether or not to ban the use of “nitrogen houses.” While sports writer Steve Kelley may be naïve when he laments that “[t]he great professional athletes of the 1960s and ‘70s certainly were genetically endowed, but their performances, their statistics, their greatest moments weren’t artificially enhanced,” the old-fashioned amphetamines, steroids, and blood transfusions have been joined by beta blockers and recombinant DNA-manufactured synthetic hormones.

Finally, doping produces a feeling of visceral distaste in some people, an emotional reaction that bioethicist Leon Kass and others call the “yuck factor.” As we have seen, Kass places great stock in the ability of this aesthetic sixth sense to identify inappropriate behavior, as he explains in an article in the New Republic: “In crucial cases … repugnance is the emotional expression of deep wisdom, beyond reason’s power to fully articulate it.” The initial crackdown on steroids, for example, was motivated in part by the ugly images of syringes littering locker room floors. The East German doping program was vilified not only because of the damage it caused athletes’ health and its role in the Cold War, but because of the unsightly, masculine appearance of the East German female athletes. Charlie Francis, the Canadian running coach, relates how one evening “I spied two of the G.D.R.’s female throwers on their way to the cafeteria for dinner. They were gotten up in frilly dresses with matching purses, and were perched on improbably flimsy heels. In between the dresses and the shoes, one was reminded of why these women were here: their calves were like tree trunks, their Achilles tendons like bridge cables. A childhood memory flashed before me: dancing hippos from Fantasia.” In response to a complaint by an American swimmer at the 1976 Olympics that the East German women had “manly frames and deep voices,” an East German official responded that they “came to swim, not to sing.”

Conclusion

The link to the Cold War and the War on Drugs, the fear of being at the mercy of powerful new technologies, and the revulsion engendered by some of the effects of doping certainly go a long way toward explaining the vigor of the anti-doping movement. But they are explanations, not justifications. The War on Drugs is no less a social disaster as its predecessor, Prohibition. It has wasted billions of dollars, jammed millions of people into overcrowded and ineffective jail systems, provided an excuse for violating civil liberties, and taught generations of youths to flaunt the law. Modeling a war against doping on the War on Drugs is like encouraging modern shipyards to mass-produce Titanics. The other factors are likewise weak rationales for banning biomedical enhancements in sports. Fear of the future also is no excuse for repeating the mistakes of the past. Liberal societies must be wary of punishing their citizens because they offend other citizens’ aesthetic sensibilities; this is permissible, if at all, only under exceptional circumstances, and it is dubious that doping in sports qualifies. And finally, the Cold War is over.

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Maxwell J. Mehlman is Arthur E. Petersilge Professor of Law and Director of the Law-Medicine Center, Case School of Law, and Professor of Biomedical Ethics, Case School of Medicine.  He received his J.D. from Yale Law School in 1975, and holds two bachelors degrees, one from Reed College and one from Oxford University, which he attended as a Rhodes Scholar.  Prior to joining the Case faculty in 1984, Professor Mehlman practiced law with Arnold & Porter in Washington, D.C., where he specialized in federal regulation of health care and medical technology. Some of the following material previously appeared in Maxwell J. Mehlman,The Price of Perfection: Individualism and Society in the Era of Biomedical Enhancement (Baltimore: Johns Hopkins University Press 2009).

Further Reading on E-International Relations

• Can Sport Mega-events Clean a Dirty State Image?
• Opinion – The Long History of the Olympic Industry and Totalitarian Regimes
• Border Crossings: Our Criminals, Their Criminals, and “Good Fences”
• A War on Mexican Drug Cartels or a War on Surplus Humanity?
• Opinion – The Olympic Games as a Reflection of Global Power
• World Sport Events and International Order