The Freedom Bulletin

Last week federal judge Marcia Cooke overturned the Firearms Owners’ Privacy Act, a Florida law restricting doctors from asking people about guns unless there is a compelling medical reason.

The debate over this law involves an interesting conflict between the First and Second Amendments. The founding philosophy of America (and one that I strongly believe in) is that people have the right to live their lives however they please, as long as they don’t interfere with anyone else’s right to do the same. The right to bear arms is part of this and is specifically protected in the Bill of Rights, and so is freedom of speech. One person’s right to free speech should only end when another person’s liberty begins. But where exactly do you draw the line?

In my opinion, speech designed to pressure another person into acting as you want them to violates that person’s right to live their life as they please. Doctors, motivated by the desire to make people healthier, are one of the biggest culprits of this. When doctors ask people questions, or tell them what to eat, how much to exercise, or what medical tests to have, they are not using physical force, and people are not obligated by law to comply. But I still believe that this is coercive and therefore should not be protected by the First Amendment. Due to doctors’ elevated status in our society, it is difficult, if not impossible, especially for shy people, to refuse to answer a doctor’s questions or to decline medical procedures that a doctor firmly instructs them to have. Doctors need to treat their patients more like customers, only performing the medical procedures that the customers indicate they want and only giving advice when it is asked for. This might sound like a radical proposition, but a customer’s gun ownership is not a doctor’s business, nor are their eating habits, exercise, emotional state, sex life, drug use, or really any aspect of their life. What we need are more laws restricting doctors, however well-intentioned, from using their authority to pressure people into giving up their privacy rights or their freedom to live as they choose.

The Firearms Owners’ Privacy Act doesn’t even go as far as the laws that I would support – it still allows doctors to ask about guns if there is a compelling medical reason, and it doesn’t outright ban such questions but merely says that doctors “should” refrain. It was wrong to overturn this law. Florida Governor Rick Scott is appealing the decision, and I hope he prevails.

Google agreed today to pay $500 million to the federal government because it allowed Canadian pharmacies to use its advertising services. The problem, according to the government, is that the drugs from Canada sold on these websites are not subject to FDA approval and might even be available without a prescription.

But in a truly free society, this should not be a problem. Companies should not be able to deceive their customers by exaggerating the benefits or hiding the risks of their products. But this doesn’t mean that people should only be allowed to have the medications that the government has determined are safe. People have a right to buy medications from other countries if they want to, including those that are risky or unproven, and people certainly have a right to make their own decisions about what medications to put into their bodies, with or without a doctor’s input.

The investigation into Google is just another example of how the FDA – in particular the Durham-Humphrey Amendment, which made it illegal to obtain many medicines without a doctor’s permission – unjustly takes away people’s liberties.

Remember when the FDA decided to require all cigarette packages to display graphic warning labels? Five tobacco companies  - R.J. Reynolds, Lorillard, Commonwealth Brands, Ligget Group, and Santa Fe Natural Tobacco Co – are suing in federal court to stop this. Although tobacco companies are far from sympathy-evoking, and although they are almost certainly motivated at least in part by financial gain in this lawsuit, the fact is that they are right. These warning labels are paternalistic and are an affront to individual liberty.

The lawsuit reads,

“Never before in the United States have producers of a lawful product been required to use their own packaging and advertising to convey an emotionally-charged government message urging adult consumers to shun their products.”

It continues,

“This is precisely the type of compelled speech the 1st Amendment prohibits.”

I couldn’t have said it better myself. Manufacturers should not be allowed to put lies or deceptive statements on packages. It even makes sense to require companies to provide factual information about their products, such as ingredients, risks, and benefits, on packages. But these labels – graphic pictures of diseased lungs, caskets, and dead bodies – go far beyond providing information. They are propaganda designed to disgust people and make them avoid smoking. They are also paternalistic because by requiring them, the FDA has decided against giving people the facts and allowing them to make their own decisions, and decided instead that people should be emotionally manipulated into doing what the FDA thinks is best for them.

It would be bad enough if the FDA displayed this insulting propaganda on government property or purchased advertisements with its own resources. But the new policy requires private companies – in fact the very companies that the warnings are targeted against – to use their resources to display the FDA’s propaganda. Requiring cigarette companies to speak the government’s message – an insulting, paternalistic, and anti-liberty message at that – is a violation of free speech rights.

Good news for liberty from the 11th Circuit Court of Appeals – in a 2-1 opinion, the three-judge panel ruled that it is unconstitutional for the federal government to require Americans to have health insurance. The decision was part of the lawsuit by 26 states against the Patient Protection and Affordable Care Act (“Obamacare”).

According to the majority opinion written by Judges Joel Dubina and Frank Hull:

“This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives.”

Read the full opinion (PDF).

…is the Obama administration’s decision to force health insurance companies to provide free birth control and preventative services for women, as well as this editorial in support of it by Health and Human Services Secretary Kathleen Sebelius.

The new policy requires insurance companies to cover, with no co-pays, co-insurance, or deductibles, a variety of services including contraception, sterilization, checkups, domestic violence screenings, STD and contraception counseling, HPV testing, gestational diabetes screening, breastfeeding counseling, and breastfeeding equipment. The reasoning behind this, Sebelius writes, is that women “have unique healthcare needs” and “are more likely to need preventive healthcare services.”

Feminism is the belief that men and women should be treated equally. Although many people extol how good the new policy is for women, it is anti-feminist to give women special attention and care and to make generalizations about how many health services they need. It is sexist to cover gender-specific health services for women but not men. It is also sexist to cover gender-neutral health services – including checkups, STD counseling, sterilization, contraception, and domestic violence screening (men can be abused too) – when women use them but not when men use them, as the new policy seems to do.

This brings me to another reason why “free” birth control is wrong: as I explained earlier and will repeat only briefly, it is unfair. The purpose of health insurance is to cover catastrophic medical expenses that cannot be prevented. Using birth control, becoming pregnant, and even going for a checkup are choices that people can make, and are therefore inappropriate for insurance. There is a completely free way of preventing pregnancy; it is called abstinence. Sex is important to many people, but that is not a good reason for everyone to be forced to subsidize it. After all, guns are important to many people (and protected by the Second Amendment), but I have never heard anyone suggest that every American be provided with a free gun. News articles and scholarly research are important, but the Obama administration has not announced any plans to force websites to provide these for free. Why is sex considered worthy of subsidizing, while research and the right to bear arms are not? Birth control, STD testing, and breastfeeding equipment are all goods that people should be free to purchase if they would like, but there is no right to get them for free.

Fairness demands that people have the option of purchasing health insurance plans that do not cover services related to contraception, STDs, or pregnancy, and gender equality demands equal insurance coverage for both genders. Despite what so-called advocates for women think, providing “free” birth control (and all the other free services included in the Obama administration’s policy) is both anti-feminist and unjust.

In yesterday’s Globe, there were two stories that made me kind of mad, for reasons that are, in a strange way, related.

One was about a federal government panel’s recommendation to require all insurance plans to ”offer female patients free coverage of prescription birth control, breast-pump rentals, counseling for domestic violence, and annual wellness exams and HIV tests,” as well as ”screening for gestational diabetes in pregnant women; more sophisticated testing for a virus, known as HPV, that is associated with cervical cancer; annual counseling for sexually active women on sexually transmitted infections; and multiple visits to obtain preventive services if they cannot be provided in one annual examination.”

Supporters of these recommendations say that they will improve people’s health, prevent unintended pregnancies, and possibly prevent large expenses in the long run. But what people really need to think about is what is fair. None of these services will be truly free, of course. Requiring insurance companies to cover them with no co-pays or deductibles equals requiring everyone, regardless or whether or not they use them, to pay for them. This is simply not fair. Contrary to what many people seem to think, sex is not something that people need to live; it is an activity that people can choose to participate in, or not, just like playing sports, reading, blogging, or buying a house, for example. It is unfair for everyone to be required to subsidize some people’s choices.  These recommendations would force people who do not have sex (who may be a tiny minority but do exist) to pay higher insurance prices with no added benefits.

It is also worth mentioning that because the U.S. Preventive Services Task Force “has historically paid less attention to gender-specific recommendations, the law’s drafters required that the Department of Health and Human Services issue a supplementary list for women.” This is extremely sexist. Men and women should be treated equally in all respects, and giving women special treatment and attention is both unfair and insulting. Would men have to pay for contraception and STD treatment under the new recommendations, while women wouldn’t? That is precisely the kind of thing feminists should oppose.

The second article in the Globe that made me mad was Jeff Jacoby’s column arguing in favor of population growth. He writes that ”the birth of virtually any baby is cause to rejoice” because ”human beings…usually create more than they destroy” and “when human beings proliferate, the result isn’t less of everything to go around.” He quotes economist Bryan Caplan, who said, ”The world economy is not like a party where everyone splits a birthday cake; it is more like a potluck where everyone brings a dish.”

While possibly true about some things, for the world’s most important resources this is completely false. No matter how inventive, hardworking, and talented people may be, they cannot create more land, more water, more oil, or more coal. There is simply a finite amount of these things, and it is a mathematical fact that the more people there are, the less of these things each person will have. I have seen with my own eyes houses being torn down to make way for condominiums, more people packed into the same amount of space. The Earth is not merely full, as Thomas Freidman at the New York Times wrote, it is beyond full. Although Jacoby calls opposition to population growth a “persistent and popular superstition,” I believe it is unpopular but right. He may call people like me “churlish” and “misanthropic,” but he is the real misanthrope for wanting people to be condemned to a world with inadequate space, nutrition, and fuel.

This might seem like an odd pair of beliefs for one person to have: opposing making birth control free but also opposing population growth. But it really isn’t. I thought of two ways to solve the problem of overpopulation which may not be practical or popular, but which I believe are truly fair:

1. Health insurance should only cover medical services that are necessary and that were not directly caused by a person’s own actions. Some of the things mentioned in the recommendations, such as domestic violence and STD counseling, are not exactly health services. Others, such as contraception and pregnancy-related services, are not needed to live, because the decision to have sex and/or have children is a choice. And others, like STD testing and treatment, are only needed as a result of certain decisions that people make. The purpose of insurance is to cover large, unexpected expenses. Covering things that are discretionary or that are predictable and preventable results of people’s actions, is unjust to all of the people who pay into the insurance pool.
2. If making birth control more easily available is unfair, how can the world solve the problem of overpopulation? In my opinion, the best solution is simply to enact a tax on having babies. Creating a new person is not a fundamental right; it is a choice that has negative externalities because it reduces the available amount of land, water, and fuel. Internalizing this externality is a perfectly fair way to get the world’s population under control.

July 22 update: The L.A. Times has an op-ed about exactly this topic, arguing that population growth is a huge problem that the public and the media ignore. I really like most (but not all) of it; check it out!

Lawyers for accused Tucson shooter Jared Lee Loughner are trying to prevent the government from forcing him to take psychiatric medication. In May, Loughner was ruled incompetent to stand trial, and last week a district court ruled that he could be forcibly given medication in an attempt to restore him to competency. Loughner’s lawyers appealed to the Ninth Circuit, briefs were filed yesterday and the day before, and oral arguments took place today. The medications are currently halted pending the results of the appeal.

I believe that no one should be forced to take psychiatric medications against their will. All people have the right to decide what they want to put into their own bodies. Forcibly giving Loughner medication might serve some useful goals – although it is far from certain to work – such as reducing the danger he poses to himself and others and making him more likely to be able to stand trial. But this does not give anyone the right to forcibly put chemicals in his body in an attempt to alter his mind.

If Loughner does not want to take medications, there is no ethical way to get him to do so. If this means that prison officials need to be more careful in protecting visitors from him, and that he will never go to trial, then so be it. No one should be required to undergo any medical procedure, for any reason, ever, not even an accused mass shooter.