Lauren Hall – Bleeding Heart Libertarians Free Markets and Social Justice Wed, 21 Feb 2018 18:00:11 +0000 en-US hourly 1 Lauren Hall – Bleeding Heart Libertarians 32 32 22756168 Design, Complexity, and Freedom Thu, 13 Apr 2017 17:11:09 +0000 Design, Autonomy, and Complexity I just got back from a grand rounds presentation with Neel Shah, a medical researcher and OB/GYN whose current research concerns overtreatment. One of the most...

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Design, Autonomy, and Complexity

I just got back from a grand rounds presentation with Neel Shah, a medical researcher and OB/GYN whose current research concerns overtreatment. One of the most important things to come out of his talk was the fact that the single biggest risk factor for cesarean section for a pregnant woman is the facility she walks into. It’s not her health status, it’s not her preferences, it’s not her birth plan, it’s not even her doctor. It’s the hospital. And it turns out there are a variety of really important hospital design elements that trigger overtreatment.  These include distance between patient rooms, distance between workspaces and patient rooms, limited ability to information share, and so on (full report is linked to here). The problem, of course, is that most women don’t know this. Medicine is supposed to take patient choice and patient autonomy seriously and most women don’t want c-sections.  Yet the c-section rate varies across hospitals tenfold in the United States, ranging from 7% to 70% and the variation is higher for low-risk women than it is for high risk women. So why do so many (32% of all American women giving birth) end up with a surgery they don’t want? Again, a big part of the answer (but not the only part, because incentives and risk also matter) is how the environment around women pushes their providers toward high-intensity treatment. What we have then is a kind of non-coercive violation of autonomy. Women aren’t (most of the time, at least) being actually forced into c-sections, they’re being led into c-sections by an environment that makes it very difficult to give birth vaginally.

This got me thinking about other ways in which we can get non-coercive violations of autonomy (someone in the comments can help me unpack that phrase, but I’m going with it for now). What are the other ways our built environments or our political, legal, cultural, and policy environments lead people into violations of their autonomous choices? Or put another way, how do our environments lead us into outcomes that are the exact opposite of what we would choose if unconstrained?

Other design concerns

Radley Balko’s work on the situation in Ferguson does a great job of demonstrating this problem in the political sphere. Ferguson’s political environment of hundreds of small competing jurisdictions meant that there were a million different ways to inadvertently break the law. Once involved with the legal system, there were a million different ways in which the environment prevented one from quickly or cheaply resolving the situation, involving long travel times, limited hours at clerk’s offices and courthouses, and obvious conflicts of interest. Some, but not all, of these design features were intentional. Many were just functions of understaffing and low levels of resources common to small towns.

Another important thinker in this area is Jane Jacobs, whose work I just read for a conference. While she’s often discussed in the context of urban design, it’s probably more accurate to call her an “anti-designer”, at least insofar as she believes large-scale design of urban areas is generally a bad idea. Her work emphasizes the way in which design can unintentionally change people’s behaviors and discourage neighborly cooperation and interaction (among other negative effects). Something as simple as a sidewalk encourages spontaneous interactions between neighbors, increases community vigilance, and provides an easy way to move about the neighborhood. Well-intentioned zoning laws, on the other hand, can strangle diversity, cut neighbors off from one another, and create dangerous dead zones at night.  Neighborhood design constrains our activities in potentially harmful ways.

What all these writings have in common is a general theme of how environments restrict people’s freedom. Of course, restricting freedom is not always a bad thing. The entire history of rule of law, for example, deals with the best way to restrict autonomy in some spheres so that people can better pursue their ends in others. But the violations of autonomy we’re talking about above are different from general restraints on bad behavior. These violations are leading people into worse outcomes than they would choose for themselves. They’re also paired with poor social outcomes including high health care costs, high incarceration rates, zombie neighborhoods. Thus, these kinds of violations are worth paying close attention to. It’s also worth noting that many of these environmental design issues are something like what is being referred to when people talk about “institutional racism” or the various “industrial complexes.”  Though in those analyses there’s even more intentionality than I think often exists. Many of the design problems we face are not those of poor motives (though again, those certainly exist), but of poor design, design that pushes people toward outcomes they would not choose themselves and that are bad for everybody.

Autonomy and complexity

Some of the problem of design has to do with complexity and how people react to complex environments. The problem with hospital birth is that too often the environment is too complex for people to make good decisions. When that happens, as Shah points out, people will revert from high-resistance modes of operation (waiting for a woman to give birth vaginally) to a low-resistance mode of operation (surgery). Rarely are the providers aware that they are doing this. They are reacting to complexity and to the situation in which they find themselves and they’re trying to find a simple way to deal with that complexity. Same thing for the Ferguson residents who don’t show up in court to deal with traffic tickets. Faced with a bewildering bureaucracy, logistical difficulties, and the high likelihood of further entanglement with the law, they choose the path of least resistance and skip their court date, inadvertently triggering an arrest warrant. Jacobs finds a similar pattern in urban design. City planners clearing slums inadvertently prevent people from solving their own housing problems and instead force them into public housing or other kinds of living arrangements they would not choose for themselves.

Noncoercive despotism?

All these examples remind me of Tocqueville’s description of democratic despotism at the end of Democracy in America. While he also ascribes too much intentionality to the “sovereign”, he does seem to understand the problem of systems that violate people’s wills not through coercion but through the gradual destruction of the ability to make good decisions. As he describes it, “it does not break wills, but it softens them, bends them, and directs them; it rarely forces one to act, but it constantly opposes itself to one’s acting; it does not destroy, it prevents things from being born…” Design – not only of our institutions, but of our built environments, of our health care facilities, of our communities – matters for freedom.  The next question is: can we design for freedom?  Can we undo poorly designed environments without falling into the overdesign/planning trap?

Are there other examples of design limiting freedom in harmful ways? Other authors who might be worth checking out?

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Privilege, Risk, and Harm Tue, 06 Dec 2016 19:17:09 +0000 Trump’s victory has triggered a spate of post-hoc analysis about what went wrong. One of the major narratives to take root is that Trump’s win was fueled by a rejection...

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Trump’s victory has triggered a spate of post-hoc analysis about what went wrong. One of the major narratives to take root is that Trump’s win was fueled by a rejection of PC culture and identity politics broadly.

I’m agnostic on this point. I see a lot of reasons to think it might be correct in some way, at least from talking to Trump voters themselves, but I also think the narrative is probably a lot more complicated than “liberals hurt my feelings”.

At the same time, having taught hundreds of college students over ten years, I can say that certain aspects of liberal America are grating on the average person, none perhaps more than the concept of privilege. Calls to “check your privilege” are one of the mainstays of left wing politics and one of the most often cited examples of those politics in conservative and libertarian circles.

Privilege as a concept is attractive to liberals because it describes something real about the world. I receive a variety of benefits from being a well-educated white woman that other people do not get. And these benefits are based almost entirely on luck. Of course, I’ve worked hard and I’m not going to undermine the importance of hard work. But there are things I haven’t worked for: I’m less likely to be pulled over by police, I’m less likely to be beaten by police if I am pulled over. I’m less likely to die violently, be incarcerated, live in poverty, miss out on a job or have my apartment application rejected on the basis of my race.

Privilege, however, is a pretty blunt instrument for talking about those kinds of benefits, largely because it ignores a lot of the nuance of what provides opportunity in our society. White friends of mine who grew up in dirt poor rural environments and who watched many of their friends die in car accidents or drug overdoses or end up in prison have a hard time taking seriously the idea that they are especially privileged in any way. They may have slightly more positive interactions with police, but then again, those interactions may still end very badly.

Privilege is also used as a (not quite) literal blunt instrument by those on the left. The concept came up in one of my post-election classes when a bewildered conservative student said that she had been told “check your white girl privilege” by a friend while discussing the election on Facebook. She didn’t respond because she didn’t even know what she had been accused of. Most of my students, including liberal students, have similar stories.

As a result, I’ve tried to think about ways to talk about what we mean by privilege that might more accurately (and less explosively) represent what it really is that we’re getting at when we talk about why some people have significantly harder lives than others based on factors outside their control.

One possible contender is to talk instead about risk. To take myself as an example, because I’m a white heterosexual married woman with a PhD I am at much lower risk of negative interactions with law enforcement. I’m at much lower risk of dying violently than my male counterparts. For a long time, I was at lower risk of my marriage not being recognized and therefore losing custody of my kids than same sex couples. I’m at lower risk of being violently targeted for my race. All these examples represent real harm that is more likely for some people than for others.  It’s the same information as the privilege discussion, but I think the language of risk is better for a few reasons.

Here’s what I like about the language of risk:

Risk roots us in facts. Instead of talking about generic opportunities, I can talk to my students about research done on resumes with traditionally black names and those with traditionally white names. We can talk about implicit bias and how it affects the way people get internships, jobs, and a host of other opportunities. I can have them read Radley Balko’s work and have them picture themselves living in a town where they are literally targeted by police because they are poor. I can talk about the risk of arrest, of conviction, of incarceration. Risk gives us specific harms to think about and target.

Risk forces people to be specific. Instead of talking about generic white privilege, risk forces us to talk about concrete experiences and to try to understand the other side. Risk forces us to think about the intersectionality, as progressives say, of our identities. As a woman, I may be at greater risk of being sexually assaulted, but at lower risk of dying violently, than a male counterpart. That’s a more specific assessment than my generic “privilege.”

Risk also makes it clear that we’re talking about real harms, not just generic advantages some people have that others do not. Risk of death sounds much more like the harm it is than the term privilege can convey.

Risk also does a better job proving the epistemic point the language of privilege is supposed to. “Check your privilege” is meant, however poorly it accomplishes its goal, to force people to recognize the accidental benefits they receive just by having the “right” color skin (or whatever other privileged status one inhabits). Unfortunately, that epistemic point backfires when the word is used to target people whose own experiences are much more complex than the person hurling the word around is aware of. The person hurling the term privilege around is the same person who has no idea that the person on the other end is mentally ill or grew up in foster care or was abused as a child. Privilege is far too broad to be epistemically useful because it assumes far too much knowledge on the part of those attaching “privilege” to various identities and lives.

Risk doesn’t do everything it might need to, admittedly. It’s doesn’t fully capture the benefits many (not all) white families received from discriminatory housing laws or mortgage lending practices, for example. As Ta-Nehisi Coates argued a few years back, part of the reason the average white family has close to 20 times the assets as the average black family is precisely because after ending slavery, white people then took away black votes and black land, and prevented black Americans from owning property through discriminatory lending, redistricting, and zoning laws for generations. Those effects persist. I’m not sure risk encapsulates that history.

Risk is also less catchy, which is both a feature and a bug. It’s a feature because it forces people to think clearly about complex issues and tease out the real risks and benefits of various identities in a pluralistic society. It’s a bug because it takes a lot of mental work that people are disinclined to do. But since part of teaching requires getting my students to do that mental work, I think it has pedagogical benefits, even if it doesn’t take off in the broader society. The catchiness of privilege, is, of course, part of the reason it can be used as a bludgeon to shut down discussion, which is also one of my main concerns with the concept.

The other thing that risk, perhaps, doesn’t capture that privilege does, is that the kinds of risks we’re concerned about in this context are those that are socially caused. My family history of heart disease, while it might cause me some misery later in life, is different from the chronic stress-caused damage that the poor experience. Similarly, my friend’s risk of death might increase because of her penchant for sky-diving, but that’s a risk she’s voluntarily taken on.

Whether or not the language of risk is the right angle to take, I think it’s obvious that we need alternatives to the language of privilege because, whatever else it does do, it gets in the way of communicating complex ideas about harm in our society and it interferes with people’s ability to recognize the harms that laws and institutions cause to vulnerable populations. The question then is how to talk about these harms in a way that demonstrates the depth of the problem to those from a variety of political backgrounds. Is risk enough? Are there better words out there?

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A Pro-Life Libertarian Case for Abortion Rights Wed, 02 Nov 2016 18:58:45 +0000 A Pro-Life Libertarian Case for Abortion Rights Partial birth abortion is now back in the national spotlight after the last presidential debate. Many of my most thoughtful libertarian friends are...

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A Pro-Life Libertarian Case for Abortion Rights

Partial birth abortion is now back in the national spotlight after the last presidential debate. Many of my most thoughtful libertarian friends are torn on the issue of abortion, particularly late term abortion, because it is a moral dilemma of a perhaps totally unique sort. The fetus is absolutely dependent on its mother for survival until at least the 24th week, and then after that for its health and development until around the 37th week of pregnancy. It’s difficult to get around that biological reality. Pregnancy is the only time in which another human being’s body is absolutely dependent on the body of another specific irreplaceable human being. And until artificial wombs are a reality, that’s where we’ll be stuck.

I’m in the morally pro-life camp and have been ever since I saw my oldest daughter on an ultrasound at 13 weeks. She had fingers and toes and by the 20 week ultrasound she was a little human being. At some point, no matter how you work it, fetuses become humans and we’re stuck with a conflict between fundamental individual rights. Walter Block famously tried to thread this needle with his theory of evictionism, which is a decent starting point except that most infants do not have great outcomes at the point of viability (around 24 weeks), so you’re not just evicting someone but substantially reducing their potential and quality of life moving forward. But at least his approach tries to wrestle with the conflicting rights of both mother and child.

Ultimately though, what interests me is not the morality of abortion, which I think libertarians can have widely different legitimate opinions on. What’s more troubling for libertarians is the practical issue of where they should stand on governmental interference in private medical decisions. The more I thought about it, the more it seemed that many libertarians’ attitudes toward government power completely flip when it comes to the abortion issue. Many argue that late term abortions should be restricted or prevented altogether because at some point the procedure becomes murder, and the government’s (perhaps only) legitimate job is preventing harm to one’s body (or property) (here’s a brief discussion).

This argument seems reasonable until we apply that justification for prohibition to almost any other method of use of government force to prevent harm to individuals in practice. We could prevent many murders through mass surveillance or tracking, but libertarians aren’t comfortable with that. We could prevent many murders by locking up for life anyone convicted of a violent crime, but libertarians aren’t comfortable with that either. We could prevent many murders or serious cases of assault by forcibly sterilizing some people, but libertarians didn’t like that when it was tried 100 years ago and they don’t like it now. In fact, the libertarian attitude toward criminal justice reform is, largely, that we need reform because even if expansion of government power could prevent some violent crimes, the costs to freedom would be too great. Why don’t pro-life libertarians make this same trade off about abortion? Why is our attitude toward risk different toward the would-be criminals out in the real world than it is toward women making intimate and difficult decisions about their own bodies?

I suspect part of the disconnect is a lack of knowledge about who uses late term abortions and for what reasons. First, late-term abortions (any abortions after 20 weeks) are very rare.  Third trimester abortions are even more rare, and most are done because the fetus is incompatible with life. These parents choose late-term abortions, not because they want to kill their children, but to save those children pain and suffering (and here). Of course, there are probably a very small number of people who do use late term abortions in a way that most of us would consider to be morally irresponsible, just as there are people out there who harm others in ways that we cannot prevent without severely restricting the liberties of everyone else. But limiting late term abortions would not prevent many of those instances, because they are already very limited to begin with. It would, however, put families in heartbreaking and dangerous situations, including being forced to actually harm their child by giving birth to it. There is simply no way to limit late term abortions without harm being the primary side effect. Moreover, women who end up having abortions after 20 weeks (distinguished from those who have abortions in the third trimester for fetal health reasons) are more likely to be poor, have low education levels, and be victims of domestic abuse, all of which make it difficult to find a provider or pay for the procedure at an earlier stage of pregnancy. More restrictions on abortion will simply make it harder for vulnerable women to find care, which in turn makes them more likely to have to choose more morally problematic forms of abortion. Libertarians are usually the first to talk about the unintended side effects of government policies and limits on abortion should be a prominent case study, yet many pro-life libertarians are silent on this issue.

But I also think part of the libertarian blind spot toward the dangers of governmental intervention in abortion comes from the lack of women in the movement, which means there are not enough people involved in the debate who have actually carried another human being in their bodies for 9 months and experienced the discomfort, inconvenience, sickness (alongside a lot of beauty and meaning) of pregnancy. Sharing your body with another human being is no mild inconvenience. And the decision to end a pregnancy in the 7th, 8th, or 9th month of pregnancy comes with dangers of its own and requires a great deal of thought and medical attention. Women and their doctors do not make these decisions lightly.

I’m morally pro-life. I do believe that late term abortions represent the destruction of a human life. Perhaps if evidence emerges that women are choosing late term abortions in large numbers for the fun of it, we might rethink the tradeoff between government intervention and individual rights, just as we might push for stricter criminal justice standards in the face of a wave of violence. But we have no evidence that that’s the case. And like almost all libertarians, I do not think the government is well meaning enough, rational enough, far-seeing enough, or consistent enough to intervene in women’s private medical decisions in a way that does not do much more harm than good. I’d like my libertarian friends who are in favor of restricting access to abortion rights, even just restricting late-term abortion rights, to step back and ask themselves whether the government they believe can protect fetal life so effectively and fairly is the same government that they believe is woefully and perhaps irredeemably corrupt, inefficient, ineffective, and harmful in most other areas of human affairs. Or is it instead that they have inconsistent attitudes toward government intervention in this case because they have not adequately thought through what’s at stake? Either way, you can’t believe government is a dangerous Leviathan in 99.9% of cases and a unicorn in one particular case. Limiting government and encouraging freedom means accepting moral risk in an imperfect moral world.

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The Fatal Conceit of Youthful Idealism Fri, 26 Aug 2016 18:51:55 +0000 J.K. Rowling came down hard on Twitter two days ago, destroying the bonafides of orphanage volunteering programs (from here on out to be known as the “orphan industrial complex”), whereby...

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J.K. Rowling came down hard on Twitter two days ago, destroying the bonafides of orphanage volunteering programs (from here on out to be known as the “orphan industrial complex”), whereby wealthy college students volunteer to “help” at orphanages in the developing world. Rowling rightly calls such interventions “voluntourism”, created not to actually help impoverished children but to provide feel-good experiences for idealistic elites. The problem is not just the poverty-voyeurism involved, but that such experiences harm the very children they were meant to help. Such study abroad programs incentivize the breakups of families because orphanages become profit-centers and the students themselves harm the children they believe they are helping by exposing them to an unstable round robin of anonymous caregivers who stay for a week, earn the children’s affections, and then leave. It’s a tragic situation all around, and the students taking advantage of these experiences never stay long enough to understand the collective damage they are causing in their quest for authentic experiences.

The quest for meaning-through-suffering can turn even more tragic for the students themselves, unfortunately. The case of Kayla Mueller, now making the rounds because her parents are doing a series of interviews blaming Médecins Sans Frontières (MSF) for not helping to negotiate her release after she was kidnapped by ISIS in 2014, is a particularly awful case in point. The complete story, as far as I can tell from news reports cobbled together, is that Mueller had a desk job in Turkey but wanted a more meaningful connection to the Syrian people themselves. In particular, she wanted access to Syrians who were living through the destruction of their country in order to take photos and get interviews for her blog. Against the advice of everyone involved including, if I remember correctly, MSF staff before she left Turkey, she traveled to Aleppo without any institutional affiliation, was chaperoned by her friend who did tech work for MSF, and turned up, unannounced at a MSF hospital in Aleppo, much to the horror of the staff there. They knew, as she should have, that an American in that area was an invitation to kidnapping and put the entire operation and their staff at risk. They provided her with a place to stay overnight and a van to the bus station the next day. Probably as a result of word getting out that an American was in the area, the van was pulled over by ISIS and everyone inside kidnapped. What happened next gets murky, but it seems clear that MSF negotiated for their own staff to be released and left Mueller’s release to the negotiations of the FBI and her parents. They possibly prevented some information from reaching her parents, but that in itself is a little unclear.

Mueller died while in ISIS custody last year, possibly as a result of a Jordanian airstrike but possibly also murdered by ISIS who then blamed the Jordanians. While she was the main victim of the youthful desire to both help others and make one’s own life more meaningful through contact with poverty and suffering, she was not the only victim. The MSF staff who were kidnapped (again probably due to Mueller’s very presence in the area) with her suffered in captivity for weeks until their release and MSF has taken hit after hit in the press for failing to negotiate on her behalf. Mueller’s instincts were no doubt no different from those of thousands of well meaning college age idealists around the globe: go to the developing world, seek meaningful connections with the people living there, explore and attempt to understand their pain, and help them to a better life in the process. These are all laudable goals, as far as they go. But voluntourists like Mueller and others suffer from a knowledge problem that is much more intractable than they would like to admit.

It’s not just governments who suffer from the fatal conceit of unintended consequences. Individuals, particularly those who aim to help others of different cultures and backgrounds, do serious damage to those they aim to help by not understanding the needs of the people themselves, the incentives their very presence on the ground creates, or the myriad other ways in which good intentions go bad. The first responsibility of anyone who seeks to help others is to ensure, as far as possible, that one’s intervention does not leave those people worse off. The tragic results of Kayla Mueller’s idealism and those of the hundreds or thousands of students who go to “volunteer” in orphanages each year should serve as a warning, not against idealism itself, but against the fatal conceit that often accompanies it, that of thinking that good intentions themselves are all that matter.

These two examples also demonstrate a particularly Hayekian point, that while our brains are set up to think that direct aid is the most efficient and most laudable way to help other people, such aid may be much more harmful than more indirect forms of assistance, particularly when it comes to societies and cultures that are so very different from our own. It’s a knowledge problem, not a motive problem. Direct assistance may make very good moral sense where one is a member of the community, is on the ground, and knows the culture of the people and what is needed, as in the case of the so-called Cajun navy during Louisiana’s flooding last month. Direct assistance where one does not understand the language, customs, or needs of the people may (and as many international development experts like William Easterly argue in fact does) do much more harm than good.

The real world is a complex, messy, and difficult place and helping those who need it the most requires not just good intentions, but careful planning, advice from those who came before, and, most importantly, strict attention to the wishes and needs of the people themselves, since they are the ones who understand, more than anyone, what they truly need. These examples are indeed tragedies all around, but as Westerners we can’t just focus on the Western victims like Mueller. There are many other victims of Western voluntourism and while we may never know their names or faces, we should at least acknowledge their existence.

Edited to add: Another example a friend mentioned is Amanda Lindhout, who wrote about the consequences of youthful travel to Somalia, which ended with her being imprisoned and tortured for over a year. I haven’t read the book yet, but it serves as a similar lesson against this kind of heedless idealism.

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Moral Intuitions and Regulation of Surrogacy Tue, 22 Mar 2016 17:22:22 +0000 A gestational surrogate in California is currently suing the man who hired her for custody of at least one of the triplets she delivered in March of this year. She...

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A gestational surrogate in California is currently suing the man who hired her for custody of at least one of the triplets she delivered in March of this year. She is unlikely to win, but the case brings up some interesting questions about the interplay between markets, technology, and reproduction. (You can see an older discussion of the case, prior to delivery of the triplets, here).

The case is a tangle of poorly read or willfully misunderstood contracts, an unprepared (and possibly somewhat delusional) father-to-be, and the pro-life/pro-choice crowd throwing themselves in for good measure. Melissa Cook was hired by a deaf 50-year-old man who lives with his parents to gestate two babies for him, created with his sperm and donated eggs. When one of the embryos split, resulting in triplets, he asked Cook to selectively reduce the pregnancy by aborting one of the fetuses. She refused, despite the contract she signed agreeing to terminate or selectively reduce at the request of the father. The case dragged on until the termination question was solved by the birth of the triplets in March.

After reading the initial summaries of the case, the Wild West of the fertility world does seem to require some kind of intervention and every article I’ve read on the case ends with a call for more regulation. But when I stopped and really thought about it I couldn’t figure out why. Anyone can get pregnant, without a license or permit or proof of adequacy (BHL has dealt with parental licensure before). Why do our intuitions about reproduction change when there’s money or technology (or both) involved?

If we’re being reasonable, our intuitions should probably push us in the opposite direction. Fertility clients and their future children are shielded in some ways from some of the worse aspects of accidental pregnancy. Clients of surrogates have enough money to pay for the service, so they’ve already jumped two hurdles on the path to baseline decent parenting: access to resources and wanting the kids in the first place.

Then I tried thinking through what else, other than children’s best interest, might make us think intervention in fertility decisions is justified.

One obvious variable is markets. Money changing hands seems to make our moral radar go off, even if, as in the case of surrogacy, women are only being reimbursed for expenses (though due to payments for time and suffering, there seems to be some kind of payment taking place). But if it’s money changing hands, why? Why do we seem money as inherently corrupting? Especially in a case like surrogacy where money changing hands actually improves the odds of getting decent parents.

Perhaps the relevant variable is technology, but then what is it about fertility technology that makes us want to regulate something we already do all the time? Fertility clinics are already regulated for safety and efficacy, so further regulation of the ends (rather than the means) of fertility clinics seem unjustified when we don’t regulate those ends in private people’s bedrooms.

If, as I suspect, the central variable is about money exchanging hands, what is it about monetary exchange that also seems to make us want to regulate something we already do all the time?

I can think of a few answers, but am willing to entertain more.

First, we see monetary interactions as having the possibility to corrupt relationships or exploit vulnerable populations. Women, in particular, may be vulnerable to financial incentives to use their bodies in ways that may not be best for them. I think there are legitimate concerns here, but in a system like the U.S. where surrogates are likely to be healthy middle class women, the exploitation card is harder to take seriously. This is more of an empirical question anyway. And so far, the little information we have on surrogates is that they do not see themselves as exploited, even in the developing world where the risk of exploitation is highest. But there is a strong tendency in modern culture to assume women’s choices are not freely made and female vulnerability continues to be an excuse for interfering in a wide range of women’s choices.

Second, maybe we see monetary interactions as commodifying something that is natural or should come from God or that has inherent dignity. This is the Leon Kass argument, and I think it is ultimately problematic, especially in the case of surrogacy. There’s nothing inherently dignified in getting pregnant, just as there is nothing inherently undignified about infertility. Women who can get pregnant easily are worth no more or no less than those who require assistance, and their babies are equally worthy. We don’t decry the money spent on IVF, why should we decry the money spent to support surrogates? The dignity argument seems like an odd combination of our desire that pregnancy occur naturally combined with our desire that if it can’t at the very least no one should get paid for it. Neither of these desires make a lot of moral sense. The idea of the dignity of a “natural” pregnancy in this case seems like a mere extension of the naturalistic fallacy, that pregnancies that happen without intervention are more worthy of respect than pregnancies that require assistance, especially those that require another woman’s womb. (Brennan and Jaworski reject the commodification shibboleth in their book Markets Without Limits, so surrogacy would seem to be a logical extension of their thoughts there.)

Certainly in Melissa Cook’s case, one would have liked to see better screening of potential clients by the clinic and maybe better reading comprehension on the part of the surrogate involved. And my discussion here ignores real moral questions about whether a surrogate can be forced to abort a fetus she is carrying for someone else. None of this means that surrogacy is a slam dunk moral case. But there’s nothing obviously different from a case of accidental pregnancy that would require more state intervention than we provide there. And various states have already solved these problems effectively through case law that commonsensically protects surrogates while reaffirming the parenthood of the people who hire them, California most notably. So cases like Cook’s are extremely rare, which again would seem to undermine any calls for further regulation.

So what’s up? Are there other aspects of this that I’m missing? Are there legitimate reasons to regulate surrogacy, apart from basic safety regulations (assuming even these are necessary)? It is just the newness of the technology? Or the combined punch of technology and markets together?  Or maybe surrogacy is just one example of a situation in which we need to let go of some of our gut moral intuitions and recognize that in the world of markets and fertility (and maybe lots of others) such intuitions may be wrong more often than they’re right.


Note: Thanks to Andrew Jason Cohen and Steve Horwitz for looking over a draft of this and providing some thoughtful suggestions.

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Some thoughts on a TERF war… Wed, 30 Dec 2015 16:33:53 +0000 A few weeks ago I ran across a few references to the acronym TERF, which stands for trans-exclusionary radical feminists. These references came from wildly divergent political sources (Slate and...

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A few weeks ago I ran across a few references to the acronym TERF, which stands for trans-exclusionary radical feminists. These references came from wildly divergent political sources (Slate and Breitbart, among others), which may be what made me pay attention. I’m not sure the movement itself is very important or has much staying power. What I’m more interested in is what TERF can tell us about language policing, identity politics, and the importance of the particular.

The short explanation of TERF (not their chosen acronym, by the way) or their trans counterparts, gender critical trans women, is that these folks question the identity politics dogma that trans women are actually women (a longer explanation can be found over at Slate). There’s more to it than that, of course, but I’m less concerned with their particular positions than with what this internecine conflict can tell us about gender identity in the modern world. Oddly enough, there’s some good news as we crawl to the end of the Year We Obsessed Over Identity.

The first bit of good news out of the TERF war (sorry) is that how one experiences gender is particular and uniquely personal. The recognition in recent years that people experience gender and sexuality in very different ways has allowed many people to live more authentic lives and to avoid some of (but not all of) the societal pressure and even violence that can accompany nonconformity. Such noncomformity is, of course, disruptive, and changes the way people interact with one another. But it also creates room for new ideas and ways of being. All that is good for freedom.

At the same time, as evidenced by the TERFs and other internal critics, is that this particularity will also push back against the rigid top-down demands of many in the identity politics world, whose policing of language and conflating of speech and aggression support precisely that conformity of thought that their own recognition of particularity should reject. Within this push and pull of authenticity versus conformity, it’s unlikely any one powerful group will come out on top. Gender critical transgender people will argue with transgender activists and the result will hopefully be a transgender community that is as diverse and particular and noisy as the non-transgender one. And, of course, as being transgender becomes normalized, much of the rhetoric will soften as both trans and non-trans communities find a lot of crossover in the other identities every individual inhabits. The great Venn diagram of human life wins again.

The other good news is that (hopefully) these disagreements demonstrate that it is possible to question the language of the identity police, even if just from within the left, and not be accused of advocating or supporting or facilitating true violence against anyone. And, of course, the flip side of that is just as (if not more) important: one can decry and reject violence against all peaceful nonconformists without accepting their worldview, their language, or even their understanding of their own identity.

Whatever else is going on with the TERF wars, their existence seems to suggest an increased opening for particularity, both within and between movements, that may eventually open up into a true respect for the individual, including individuals who disagree.

At the very least, there are now many many more ways of being an individual than ever before. And that’s cause for celebration.

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Polygamy is NOT the New Monogamy Tue, 30 Jun 2015 13:00:17 +0000 [The following is a guest post by Lauren K. Hall, Assistant Professor of Political Science at Rochester Institute of Technology.] Christopher Freiman thinks it might be time to legalize polygamy...

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[The following is a guest post by Lauren K. Hall, Assistant Professor of Political Science at Rochester Institute of Technology.]

Christopher Freiman thinks it might be time to legalize polygamy now that same-sex marriage is a legally protected right nation-wide. I’m not so sure.

Freiman’s main contention is that “all of the standard objections to polygamous marriage can apply to heterosexual monogamous marriage as well.” This is true in a sense, but only if your objections are so broad as to be almost meaningless.

In reality, heterosexual or homosexual marriage is facultatively different from polygamy. The most obvious difference is that heterosexual marriage (to focus on his example) is a form of monogamy. Apart from the practical concerns of having to reformat the entire tax code, benefits structure, and the problems plural divorce and child custody would create for family courts, there are other more foundational reasons to be suspicious of extending marriage rights to polygamous families.

Polygamy is just different from monogamy. (When I use the term “polygamy” I really mean polygyny, or a man having multiple wives, since polyandry has been rare in the human experience.) So what does men having multiple wives do?   A few important things. The most dangerous is that it skews sex-ratios of available mates. Polygamy creates a dearth of fertile women and a surplus of unmarried men, since powerful men pull fertile women out of the marriage pool. The sex-ratio problem is particularly problematic in insular or closed societies where a dearth of women creates downward pressure on the age of marriageable women, encouraging child-marriage. The surplus of unmarried men is dangerous since such men must resort to ever more competitive and aggressive behaviors to secure mates, including in some cases, rape and abduction. Additionally, polygamy fractures paternal investment in offspring and leads to increased investment in sons at the expense of daughters.

Because marriageable females become scarce, polygamy concentrates reproductive power in the hands of powerful or wealthy men who can afford to buy or coerce women into relationships and control unmarried males. The scarcity of women may also lead to an increase in sex-trafficking as women are brought in from other communities to meet demand. The economic language is intentional here, since polygamy tends to support the treatment of women as commodities, to be bought, sold, and controlled by male relatives.

The reality is that polygamy, unlike monogamy of any stripe, is associated with externalities that are difficult for liberal societies to cope with. While it is difficult to untangle the various causal mechanisms at play, polygamy is associated with everything from increased maternal and infant mortality to increased incidences of child-marriage to decreased political power and educational levels for women. These patterns are seen not only in polygamous societies in developing countries, but also in polygamous communities in the U.S. and, interestingly, in polygamous primate species. Across the board, polygamy is associated with lowered health, education, and status outcomes for women. Monogamy, conversely, has no consistently negative social externalities of this kind.

There are, of course, alternatives to outright bans on polygamous unions. Availability of education for women and the existence of a strong middle class tend to be negatively correlated with polygamy. Unfortunately for the libertarian argument, however, the research on polygamy demonstrates that, while education of women and liberal attitudes probably help prevent the spread of polygamy, the most effective tool is banning it, either through the passive failure to recognize such marriages or through the more active pursuit of polygamous families in criminal trials. I don’t condone the latter, partly because it seems unnecessarily punitive and may drive such behavior underground, exacerbating abuses. But just because the active governmental role has issues does not mean the passive refusal to recognize such marriages is similarly problematic. In fact, it seems bizarre from a libertarian perspective to make the argument that once we allow some forms of government sanctioning of marriage that we must allow government to sanction all marriages, however deleterious their effects.

There’s another discussion to be had about serial monogamy and the effects of de facto polygamy on children, but leaving that aside, at the very least we should resist the idea that every family form is just as good as any other. We should also resist the contention that equal rights claims demand that we recognize any and all marriage forms just because. Monogamy is one of the bourgeois virtues that make liberal societies possible and because liberal societies require certain types of people, there are some decisions that individuals make that we do not have to either recognize or condone. If we care about voluntary cooperation and protection of individual rights, family forms that destroy both of those goods should be scrutinized and judged. Libertarianism does not entail relativism.

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Why Individualism Needs the Family Mon, 10 Mar 2014 13:00:16 +0000 Defenders of individual liberty need the family, perhaps more than they know. Individualists need to acknowledge the importance of the family for the sake of theoretical completeness and for the...

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Defenders of individual liberty need the family, perhaps more than they know. Individualists need to acknowledge the importance of the family for the sake of theoretical completeness and for the sake of public acceptance. But the family isn’t an area in which individualists must make tactical compromises. Acknowledgment of the family actually supports individualist resistance to the overreaching of the state. Here’s just one example of why libertarian neglect of the family actually harms libertarian thought.


A Limited Individualism

Murray Rothbard’s work is a good starting point because he’s considered one of the great libertarian thinkers and he explicitly deals with the family in his work. Rothbard defines crime as “…an act of aggression against a man’s property right, either in his own person or his materially owned objects.” Such a definition is pretty standard in the libertarian literature. Rothbard chooses a minimal definition of crime to underscore the minimalist duties of the state in preventing private coercion.

The problem with Rothbard’s definition becomes evident when we think of individuals not as individuals only, but also as members of important groups—groups with enduring human bonds. By Rothbard’s definition, kidnapping a child is not a crime against the parent; it is a coercive act against the child. Any parent, however, would argue that kidnapping consistitutes a violent act against the parents of a child as well. Because children are neither the person of the parents nor their “materially owned” objects, the harm to the parents falls outside the Rothbardian definition of coercion. Yet children, in our intuitive understandings, are both extensions of the persons of the parents and are at least analogous to property, in the sense that is meant when we say a child “belongs” to a parent or that a child is “mine”. It is precisely the extension of persons into other persons and the blurring of property rights into persons that makes libertarians unsure of the status of the family and how to fit it into the traditional polarity between individual and state.

Rothbard’s essay Kid Lib aims to clarify some of the libertarian position toward parents and children, but it leaves the fundamental relationship unclear. Because parents have no ownership over their children, only guardianship rights, there’s still no reason one person couldn’t take a parent’s child and raise it better than that parent without technically violating the parent’s rights at all. Rothbard emphasizes the rights of the child and the obligations of parents, but never actually answers the crucial question of why and if parents truly have a “right” to their children in the first place. Rothbard determines that the law cannot “force the parents to raise their children properly,” but if parents don’t have an ownership right over their children and their children have not yet consented to parental guardianship, why can’t the state step in? On Rothbard’s grounds, there’s no principle that gives the parental relationship priority over the state’s relationship to those same children.

The libertarian argument fails to solve the problem of why parents have the initial right to raise their children in the first place. Oddly enough, it is the treatment of the child as an individual without reference to the bonds he has to his family, or the rights parents have over (or to) their children, that leaves parents with insufficient grounds for resisting state intervention. Such intervention happens, and not infrequently. The case of kidnapping is not merely a theoretical hole, easily plugged.

Niveen Ismael’s odyssey through the California child welfare system chronicled in a recent New Yorker article is but one heartbreaking example. Ismael finally lost her son to another family thanks to the arbitrary standards used by social service and law enforcement to remove children from homes and even terminate parental rights. The state stole her child, but not on Rothbard’s account. On Rothbard’s definition, the theft of Ismael’s car would have been a more clear-cut crime than the theft of her child, despite the fact that she will never recover from the latter.  Ismael’s story is rage-inducing, but Rothbard and many libertarians couldn’t argue that she is the victim of a crime as she would have been had the state stolen her car, for example. Yet she will never recover from the loss of her child the way she would from a stolen car. If we view children merely as individuals without meaningful connections to parents and if we view parents as discrete individuals without rights over and to their children we lose much of the grounds for the moral outrage we feel at the treatment of individuals like Ismael. She was the victim of coercion by the state. That her son may be better off in material or emotional terms in a stable, two-parent, middle-class family does not undo the irreparable violence that has been done to his relationship with his mother, a relationship entitled to our respect in part because it is so tightly linked to our understanding of who we are as free individuals. Kidnapping, by an individual or the state, is not a crime that Rothbard’s framework can fully address. We intutively feel outrage, but according to the traditional libertarian definition of coercion, we can’t make that outrage stick.


A New Kind of Individualism

Leaving aside the narrow case of kidnapping, libertarians need the family for other reasons as well. The family does more than simply challenge libertarian definitions of crime, coercion, and violence. The family also challenges individualism in ways that are fundamentally healthy for a free society. Most obviously, the family is the ultimate reflection of human dependence and need, something individualists need to pay more attention to (as the very title Bleeding Heart Libertarians suggests). No matter how much we emphasize personal responsibility and the importance of hard work, there will always be children and the elderly, the disabled and the mentally ill, the lonely and the grieving. Human life being what it is, all of us will experience dependence at various points in our lives. When that happens we need connections to other people, who can provide charity, succor, and love. The state can only partially provide these. The family (and the civil society it supports) can and should provide most of them.

Another benefit of the family for libertarian thought is that the family supports individual human freedom, even as it challenges it. The family is where the individual is best known and best valued. Family life is where we learn to be both individuals and group members, citizens and dissenters. It is also where we do our most profound and creative work: the bearing, raising, and educating of other human beings. Parenting is an expression of our freedom in the most foundational way. Ignoring this most central and universal activity, around which much of human life is centered, will leave any political philosophy visibly incomplete.

The family is also useful as a buffer against the power of the state. Because kin connections are largely independent of the state, family ties serve as some degree of protection against government abuse of individuals. One of the more disturbing and often overlooked consequences of China’s One Child Policy is an entire generation growing up without siblings, cousins, aunts or uncles. This isolation and separation of individuals from traditional family networks, combined with a state that readily violates individual rights, is hardly coincidental. Strong family ties might not have prevented the human rights abuses seen in modern China, but the One Child policy makes such abuses easier for the state to commit.

Finally, and the subject of another post, the family teaches us that the traditional libertarian neutrality to family forms creates its own set of dangers to individual freedom. Some types of families support liberty, while others do not. Polygamy, for example, comes with heavy costs to freedom. While state intervention may actually make such costs greater, ignoring the costs that some family types impose on women, children, and the community prevents a comprehensive understanding of how best to support individual liberty in the private sphere. We should not forget that there is an important middle ground between outlawing something and embracing it, and that middle ground – discussion, social pressure, and persuasion —  is the heart of liberal societies.

Libertarians need the family because without it their theory is incomplete, a sliver of the human condition and a caricature of the real value of liberty as a principle. I’ve argued elsewhere for what I call a “social individualism,” or the recognition that humans are fundamentally social creatures and that individualism only makes sense within a social context. This kind of individualism is not a capitulation to those who believe that all rights are social rights. It is, instead, a recognition of the richness of human life and of the incredibly diverse interests and desires that comprise all human lives. Individualism is valuable because it highlights the importance of each individual, independent of the social milieu. But for individuals to remain important, they must also be understood within the social network of family, friends, neighbors, coworkers, and all of the other people for whom that individual has value, meaning, and worth. The failure of libertarians (despite some notable exceptions) to acknowledge and wrestle with the difficult questions the family poses weakens the theory and makes it less persuasive to the mothers, fathers, daughters and sons who grapple each day with how to be individuals in a profoundly social world.

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