For decades, the American criminal justice system has been engaged in a "war on drugs" that critics say cannot be won. The enthusiasm for that war has been flagging for some time; a 1989 issue of the Quarterly (then called QQ) featured an article by Claudia Mills titled "The War on Drugs: Is it Time to Surrender?" In amateur and professional sports, however, the war on performance-enhancing drugs has been steadily escalating in recent years. Major doping scandals have roiled several sports, and drug testing has become ever more stringent. Yet at the time of the 2008 Beijing Olympics, where concerns about doping were pervasive, a few voices called for surrender.
Some commentators argued that the war on doping was futile, since the technological sophistication of the dopers would always outstrip, if only for a few critical weeks or months, the capacity to detect their work. Others, however, argued that even if the war could be won, it wouldn't be worth fighting. As John Tierney wrote in the New York Times, "We all know the body can be improved. We all know Olympic athletes have the highest-functioning bodies in the world. They can call themselves natural, just as they used to call themselves amateur, but at some point that claim may seem the most unnatural thing of all." To bolster his case, Tierney noted that the fans themselves include people "with laser-corrected eyes, chemically whitened teeth and surgically enhanced anatomies. Not to mention the pharmacopeia coursing through our veins."
These are still minority opinions. Just a year before the Olympics began, Barry Bonds broke Hank Aaron's lifetime home run record to a chorus of denunciation from sports pundits for his reported steroid use. Several months later, that chorus grew even more strident with the release of the Mitchell Report on doping in professional baseball, which gave Bonds lots of company and his detractors a surfeit of new targets. Along with cycling, the subject of frequent scandals involving widespread steroid use, baseball has now submitted itself to an intensive regime of drug testing and monitoring.
But even in the unlikely event that anti-doping measures are successful in their narrow objective of deterring illegal drug use, they are ill-equipped to deal with a wider range of biotechnological interventions, which may bring far more significant changes in the performance capabilities of athletes. Unlike steroids, whose possession is illegal and whose use is widely regarded as unhealthy, these new technologies, genetic modification in particular, may at some point become legal and safe. Also unlike steroids, these technologies won't all be intended to confer a competitive advantage. Some, like the prosthetic limbs of runner Oscar Pistorius, will be designed to restore function lost to disease or disability; others, especially genetic modifications, will be intended for more general enhancement purposes. And in some cases, such as germline genetic engineering, the interventions will be undertaken not by the athletes themselves, but by their parents. To ban such technologies would be to ban whole classes of athletes, including some who would be incapable of compliance and others who would not be responsible for their enhancements.
Moreover, a ban on biotechnological enhancement would be hard to justify or maintain without a ban on other technological enhancements, like the performance-boosting swimsuits that predominated at the Beijing Olympics, and whose cost is bankrupting many small high school and college teams. The attempt to distinguish forbidden from permitted modifications on the basis of their external or internal location, or their natural or artificial character, has proven a particularly futile exercise in casuistry. Rather than criticize recent efforts to make such distinctions, I will just observe that the continuing uncertainty about the grounds for distinguishing forbidden and permitted modifications is likely to undermine the moral authority and practical efficacy of any regulatory regime. …