Following Mill, libertarians have condemned paternalistic legislation. Examples of such legislation are the criminalization of drugs, and the failure to wear motorcycle helms or seat belts. Mill’s argument is that society is not entitled to protect people against themselves. Society is instead entitled to prevent people from making decisions that harm others. When I run this argument, people immediately reply: “But the Millian standard is satisfied here. The fellow who refuses to wear a motorcycle helmet is harming others, because the state must care of him if he suffers an accident. This guy imposes costs on society, namely the costs of providing him with the care he needs after irresponsibly failing to wear a helmet.”

I think this reply is problematic. Suppose that in the absence of state-subsidized health care the behavior in question (failing to wear a helmet) would have been morally innocent on Millian grounds. Then I don’t think the state is entitled to create subsidy schemes that turn morally innocent behavior into punishable behavior. In other words: the only reason that the failure to wear a helmet is now socially harmful (and thereby punishable) is that the state has coercively decided that all persons injured in accidents will receive state-subsidized health care. The puzzle is this: can the state do that? Can the state turn morally innocent behavior into criminal behavior just by increasing the number of state services?  This really deserves some serious thinking, which I have not done, but I’m inclined to say no.