[This chat was inspired by the realization that both Jessica Flanigan and I blog at BHL and both do work on pregnancy and birth but we hadn’t yet connected. So here, for whatever it’s worth, is our conversation. We’re hoping to have some more discussions on women’s health and paternalism broadly in the coming months.]

Jessica
Hi Lauren! Nice to meet you!

Lauren
Nice to meet you too!

Jessica
Tell me about what you’re working on- I hear you are writing about pregnancy/babies? I am also working on this topic so I can’t wait to hear what you have to say.

Lauren
So I was actually thrilled to see your article on obstetric autonomy and informed consent because it is really close to some of the work I’m doing right now on birth. I’m looking more at the political side of things. Namely, the laws, regulations, and general policy structure that prevents women from giving birth the way they want to. It’s basically a sort of deep dive into the political and policy limitations on informed consent, because there are so many other things operating before a woman even enters the hospital to give birth that artificially limit her choices. I found it pretty depressing, actually.

Jessica
Such a good project! It’s pretty incredible how little libertarians actually talk about childbirth given that it’s so tied to bodily ownership, legal interference, regulation, licensing, paternalism…

Lauren
Yes! I kept looking for articles on the subject and there really isn’t much out there. Or at least there’s a fair amount from an activist perspective, but not much from a scholarly one. And very little from a libertarian viewpoint. A lot of my interest in it came from the fact that I’ve now given birth three times and I was sort of interested in some puzzles that I noticed while I was pregnant. I live in New York state and there are only two birth centers in the entire state. And this is a state filled with pretty progressive women who care about birth. So I started digging a bit and found out that New York has very restrictive Certificate of Need laws that require birth centers to basically ask hospitals for permission to operate.
It’s hard to imagine other businesses where you ask your direct competitor for permission to enter the market.

Jessica
That’s so messed up, VA has this too Had you seen this article in Reason about this? Basically, it says these laws also prevent existing institutions from getting the equipment they could use to treat infants in a NICU because doing so “would foster institutional competition”

Lauren
I thought there were some interesting connections with your work on informed consent, since part of what we struggle with is that doctors need to give women adequate information and solicit consent before doing things. But no one really talks about explaining the broader systemic issues that have already artificially narrowed her choices. A doctor could say “we need to do a C-section for X, Y, or Z reason” but fail to mention that the reason they’re doing it is because they are living in a state with a de facto ban on vaginal birth after cesarean or she’s giving birth in a hospital with outdated policies about how fast labor has to progress. So even the seemingly “easy” task of asking for consent is loaded because there is lots of information women just don’t have about why their choices were limited in the first place. And doctors themselves sometimes don’t really know either.

Jessica
Right, and also these laws necessarily prevent people from making decisions that are in their own medical and overall interests because policymakers can’t know whether a VBAC is too medically risky or not. What the Reason article shows, and what accounts of women who homebirth out of frustration with hospital regulations also show, is that a lot of policy gets made out of a desire to protect health and safety but there are also health and safety risks to the regulations that go unseen.

Lauren
Ooof, that Reason article is so sad.

Jessica
And there are other risks too. Some women move away from their families during their last month of pregnancy to give birth at a place that permits them to attempt a VBAC, that may not be a medical cost but it’s a cost

Lauren
Exactly. Part of what I argue in the book is that in both birth and death (the other piece I look at) we know that the best care is individualized care. These are not events that can be standardized well and standardization actually harms patients, resulting in worse medical outcomes, as well as more suffering. What’s so frustrating about a lot of these laws, regulations, and reimbursement policies is that they force the standardization of birth and death, funneling pregnant women and terminal patients into hospitals, where they will have very poor medical outcomes and catastrophically expensive care. So the book as a whole looks at the medicalization of birth and death and traces that medicalization to these state and federal policies that encourage hospitalization and standardized care.

Jessica
Why do you think that this standardization and medicalization has been so prominent at moments of birth and death in particular? Or is it a more general phenomenon that’s just especially vivid in these cases?

Lauren
Both have to do in part with the structure of Medicare and in part with the insistence of the medical community that these are medical events, which in turn influence state laws like the certificate of need laws and midwifery licensing. Obviously birth and death have medical components, but both also have really important non-medical components that, say, a kidney transplant doesn’t have. Both birth and death require attention to emotional, psychological, and social components that hospitals really struggle to do justice to.

But really, we medicalize everything. The U.S. is unique for the amount that we push the envelope of what constitutes “disease” and therefore “rightfully” falls under the banner of medical control. But I’d say birth and death are outliers even among the other stuff we medicalize.

We have alternatives like birth centers and hospices where people get better care at a much lower cost, but there aren’t enough of them because we’ve made it so difficult for them to compete with hospitals. And as you mentioned above, these limitations can force people into really frustrating and unnecessary situations when they are the most vulnerable. Like traveling out of state to give birth or forcing an elderly parent into a nursing home because Medicare will cover very expensive hospitalization, but not home hospice.

Jessica
That’s true, but it’s striking because in a lot of other areas medicine providers addresses departures from normal species functioning. But normal species functioning includes birth and death very late in life. So it’s interesting that egalitarians like Norman Daniels, for example, who argue that public institutions should give people health care in order to bring everyone up to the level of normal species functioning so they can participate as equals in a fair society also may not agree with this focus in medicine for reasons that are similar to the reasons that they don’t think insurance/providers should enhancements in contrast to treatment. This seems like a case where both egalitarians and libertarians should reject the current system. If egalitarians argue that public institutions should support health care interventions that enable everyone to relate as equals or have equal opportunity to participate in society, and libertarians argue that public institutions should respect people’s rights to make intimate and personal decisions and that we should beware of rent seeking both have reason to reject the current approach to birth and death.

Lauren
Yep, I think your intuition there is right. Both egalitarians and libertarians should (and most do, I think) hate the system as it currently operates. And I actually don’t even think the current system is that value-based. I think we set up Medicare 60 years ago based on the idea that “more medicine and procedures is better” and we’re now paying for that approach. The fee-for-service model means that Medicare pays a ton of money for the elderly to be subjected to unnecessary procedures and medication, but won’t pay for the human being who could help keep that elderly person safe at home at minimal cost. And a lot of palliative care physicians have raged against this idiocy: we pay for really intensive care that doesn’t help anyone but we don’t provide the human care that could keep people out of hospitals even when that care is significantly cheaper.

Jessica
So it’s one of those cases where by some historical accidents we’re stuck? What should change? Solve healthcare Lauren!

Lauren
Ha! Well, the really obvious one is already sort of in the works, with Medicare experimenting with what is called Value Based Care. But really, I think the whole thing shows how a bloated bureaucracy just can’t do this well.
I’d rather go to a kind of HSA system where people have a lot of flexibility in how they spend their healthcare dollars, but no one is actually taking that kind of proposal seriously. I mean, there are HSAs, obviously, but I’d like to get rid of health insurance for all but the catastrophic stuff. And that proposal isn’t going anywhere.

Jessica
Yeah, I’m skeptical about how far this could go but some of those programs do seem pretty good, like paying for home-based care for nursing-home eligible seniors and paying to modify their home so they can stay in their home, that seems like a good, small step for medicare/Medicaid helping people at the end of their lives.

The HSA model is interesting, but then once we’re in that ideal theoretic world, why not just give people cash like Chris says we should?

Lauren
Well, that’s the dream, right? But I’m enough of a paternalist to think that some people will make really poor decisions and that creates a kind of moral problem of what to do with really sick people who have squandered their health care dollars. We can’t really let them die in the street. So I don’t know. If we’re assuming health care is a “right” of some sort or that we have a moral duty to treat people who are ill, maybe we also recognize that the state has some interest in ensuring those people invest in their health in some way.

They’re going to take away my libertarian card now.

Jessica
I’d like to see them try without violating the non-aggression principle!

Lauren
Now that we’ve solved the health care crisis, I have a question for you. You have two articles relating to autonomy during pregnancy and birth. Both seem really obviously right to me, but I wonder if you have thoughts on why we struggle to recognize that women have rights over their bodies. I mean, obviously, the baby is another player and that might be the whole story. But do you think there’s more to it than that?

Jessica
I think the moral status or potential moral status of babies explains a lot of it. I also think that people are just super risk-averse when it comes to pregnancy and there’s so much uncertainty partly because it’s so difficult to collect good data on the effects of maternal behaviors on a child’s future development. That’s why I like Emily Oster’s pregnancy book Expecting Better so much. I suspect that a lot of the moralism about pregnant women’s choices can be explained by people’s ignorance about how risky things are. On the other hand, some choices really are risky. But we shouldn’t conflate any risk in pregnancy with Very Morally Serious risk.

Lauren
Yeah, I loved that too. I found it so helpful during my own pregnancies in assessing the real dangers of various kinds of things. I had to delete a bunch of pregnancy apps because there was just an insane amount of judgment and very little scientifically-grounded advice.

Jessica
Mom-judgment is so weird to me. Like, moms are performing a huge public service to everyone and creating an entire life full of meaning and value and for some reason there’s all this judgment around motherhood if you aren’t doing it perfectly.

Lauren
It is really bizarre. I liked that part of your prenatal injury article where you say precisely that. This is a huge gift! Give these women a break!

Jessica
Leave Britney alone!

Lauren
Haha, exactly! I should probably run since I have some work on Edmund Burke, of all people, to do. But are you working on anything else related to birth I should know about?

Jessica
The plan is to finish a draft of a book about maternal rights during pregnancy and childbirth this fall. And your book is almost finished, right?

Lauren
Yep. A draft is with some workshop reviewers.

Jessica
Yay!!!

Lauren
It wasn’t meant to really have a libertarian message at all. But it sort of emerged once I was knee-deep in all this depressing research.

Jessica
I can’t wait to read it, and also to talk to you more about paternalism!

Lauren
Can’t wait!