Tuesday, June 03, 2008

Two Cheers for Steroids?

Et tu Big Brown? Equine steroid use is currently permitted in most states and, according to news accounts (e.g., this one), widespread in thoroughbred racing. And why not? The rationale for forbidding human steroid use in other sports does not seem to apply to equine use. Or does it? That depends on what you think that rationale is. An excellent new film by Michael Moore-ish director Chris Bell, Bigger, Stronger, Faster, asks just why we forbid the use of anabolic steroids and why so many of them use them nonetheless. The film is not exactly pro-steroids, but it's not exactly anti-steroids either.

I can't do the film justice in a short blog entry---and while using many of Moore's techniques to good effect, Bigger, Stronger, Faster is less polemical than most of Moore's films---but Bell essentially considers two main rationales for forbidding anabolic steroid use in sports: 1) They're unhealthy; and 2) they provide an unfair advantage. As to the health question, Bigger, Stronger, Faster strongly suggests that the harmful effects of anabolic steroids, while real, are mostly reversible and, in any event, less serious than the harmful effects of many legal substances, including alcohol and tobacco, as well as other kinds of steroids such as cortisone.

As to the fairness question, the film notes the obvious circularity of the argument: If everyone were permitted to use anabolic steroids, then no one would be gaining an unfair advantage by doing so. Bell also suggests that we have no non-arbitrary criteria for distinguishing between permissible interventions---such as laser eye surgery---and impermissible ones.

This further point is not entirely persuasive. Sure, we have no precise rule for distinguishing legitimate from illegitimate enhancements, but we have rough principles. Thus, the right question to ask about the use of "Cheetahs" by Oscar Pistorius is whether they confer a mechanical advantage over human legs and feet. The Court of Arbitration for Sport said there wasn't good evidence that they do, so Pistorius can use them in international competition. (Full disclosure: Dewey & LeBoeuf, where I moonlight as a lawyer, represented Pistorius pro bono, although I didn't work on his case.) But someone whose prosthetics consisted of, say, wheels, or a non-disabled runner who wanted to "run" the marathon in rollerblades, would clearly be gaining an unfair advantage. It's true that this would not be unfair if everyone were allowed to use rollerblades, but then the character of the marathon would have been changed dramatically. (Justice Scalia made a similar point about golf carts---unpersuasively but not unreasonably in my view---in his dissent in the Casey Martin case in 2001.)

Accordingly, one further reason we might have for wanting to forbid anabolic steroids and/or other performance-enhancing drugs from sports is that permitting them changes the underlying sport in ways we don't like. Just as we don't want to see a marathon on rollerblades (at least I don't), so we might not want to see other sports played by hyper-muscled giants. Except that---and this is one of Bell's primary points---we often do: Baseball fans loved the extra home runs produced by the extra muscles. And even if we didn't want to see McGwire and Sosa go at it, the cat-and-mouse game of monitoring athletes' use of these drugs is a huge administrative cost that must be counted against a banning regime.

That leaves just one rationale for forbidding anabolic steroids from big-time sports: These drugs appear to be more harmful in children/teenagers than in adults, and certainly for kids who will never be professional athletes but think they will, the risk/benefit ratio of the drugs should counsel against their use. By permitting open anabolic steroid use in professional sports, we would be encouraging their use among minors. This is not a bad rationale for banning anabolic steroid use in big-time sports, although it also might apply to other substances: alcohol and tobacco are sold legally to adults but not minors, thereby undoubtedly conveying the impression to some minors that use of such substances is "grown up." If we accept a regime of legal-for-adults-but-illegal-for-minors for alcohol and tobacco, one could ask, why not for anabolic steroids?

In any event, whatever one thinks of the role-model argument with respect to humans, it's pretty clearly inapplicable to horse racing. Young thoroughbreds are not looking at Big Brown to decide whether to take steroids. Perhaps the steroids are bad for equine health, but among the terrible things that humans do to non-human animals---including to thoroughbred race horses---giving them steroids has to be pretty far down on the list of abuses.

Posted by Mike Dorf