Ironic Freedom

Personal Choice, Public Policy, and the Paradox of Reform

J. Baer

• Publisher: Palgrave Macmillan
• Year: 2013
• Print ISBN: 9781137030955
• eBook ISBN: 9781137031006
• Topic: Social Sciences
• Subtopic: Political Philosophy
• Index: Social Sciences

Ironic Freedom asserts that freedom from governmental interference may make people vulnerable to other sources of coercion; these affects vary by gender, race, and class. Increasing negative freedoms may reinforce existing asymmetrical power relationships within society.

Chapter 1

An Introduction to Ironic Freedom

A month before the 2012 general election, prospects looked good for Question 2, the “Death with Dignity” initiative on the Massachusetts ballot. It would have legalized physician-assisted suicide, making Massachusetts the fourth state to do so. Like similar provisions that had passed in Oregon in 1998 and Washington in 2008, Question 2 contained safeguards against coercion and premature decisions. It required that the patient’s life expectancy be six months or less, that he or she be mentally competent, and that two witnesses and two physicians approve the request.1 Public opinion polls taken a month before the election showed that 65 percent of voters approved the bill.2 Poll results suggested widespread acceptance of views like those of the Death with Dignity National Center: “The greatest human freedom is to live, and die, according to one’s own desires and beliefs. From advance directives to physician-assisted dying, death with dignity is a movement to provide options for the dying to control their own end-of-life care.”3

Then something happened. Support for the measure had plummeted to 47 percent the week before the election. On November 6, 2012, Massachusetts voters defeated Question 2 by a vote of 51 to 49 percent.4 The defeat of Question 2 was widely interpreted as a victory for the local Roman Catholic hierarchy. So proclaimed its leader, Cardinal Sean O’Malley. So echoed the state’s leading newspaper. The church contributed much of the 5 million dollars devoted to opposing the initiative.5 Catholics oppose assisted suicide for the same reason they oppose abortion and capital punishment: in taking a life, human beings usurp a prerogative of God. Catholics make up only about 42 percent of the population of Massachusetts. Given a favorable combination of voters and nonvoters on Question 2, they could have provided 51 percent of the voters on the measure, but this unlikely result did not occur.6 Catholics were joined in opposition by some Protestant clergy, a coalition of rabbis, and at least one imam.7 If Question 2 lost because the devout imposed their views on others, a liberal, even one who opposes assisted suicide, would have no hesitation in condemning the result as unfair and unjust. It is an example of the primacy of sectarianism over secularism that liberals fight against. The fact that the denomination involved had disgraced itself and forfeited moral standing in a sex abuse scandal in which the Boston diocese was severely implicated made the situation even worse. Many feminists, liberals or not, are suspicious of religion in general and Catholicism in particular, and would sympathize with the liberal view.

But there is reason to doubt that religious belief determined the result. Opponents of Question 2 included activist groups whose arguments were neither based on religious doctrine nor easy for liberals or feminists to dismiss. The Massachusetts Medical Society (MMS), an organization of physicians, insisted, “The proposed safeguards against abuse are insufficient,” because “[a] witness to the patient’s signed request could also be an heir,” although the measure also stipulated that one witness must not be. “Abuse” apparently meant the involvement in the decision of someone with a tangible interest in the patient’s death; the society’s statement expressed doubt that assisted suicide would be the patient’s decision alone. The society also recommended hospice care and pain relief rather than assisted suicide, and it reminded its readers that prognosis is not an exact science: “Predicting the end of life within six months is difficult; sometimes the prediction is not accurate . . . In one study, 17 percent of patients outlived their prognosis” (so 83 percent did not).8 These arguments imply that a natural death is preferable under any and all circumstances to suicide. Chapter 2 will call that premise into question.

The disability rights movement has been a consistent and persistent source of opposition to assisted suicide in the United States. A Massachusetts-based organization, Second Thoughts, was founded specifically to oppose Question 2. This group called the proposal “dangerous and discriminatory, especially for elders and disabled people.” Like the MMS, Second Thoughts emphasized, “An heir can be a witness and help sign someone up, and once a lethal drug is in the home, no one will know how the drug is administered . . . Nothing in the law can offer protection when family pressures, whether financial or emotional, distort patient choice.” It described assisted suicide as “a deadly mix with a profit-driven healthcare system. Pressure to cut costs, delays in treatment and limited coverage for home care can lead patients, families and doctors to choose the cheapest alternative.”9

The debate spread out of state into the op-ed pages of The New York Times. “Whom does legalizing assisted suicide really benefit?” asked Ezekiel J. Emanuel, an oncologist and former White House advisor. “Well-off, well-educated people, typically suffering from cancer, who are used to controlling everything in their lives—the top 0.2 percent. And who are the people most likely to be abused if assisted suicide is legalized? The poor, poorly educated, dying patients who pose a burden to their relatives.”10 Ben Mattlin, a disabled journalist and activist, conceded that “[t]here’s been scant evidence of abuse so far” in states where assisted suicide was legal, but he cautioned that “abuse—whether spousal, child or elder—is notoriously underreported, and evidence is difficult to come by.” He had “lived so close to death for so long that I know how thin and porous the border between coercion and free choice is, how easy it is for someone to inadvertently influence you to feel devalued and hopeless—to pressure you ever so slightly but decidedly into being ‘reasonable,’ to unburdening others, to ‘letting go.’”11

The Boston Globe editorialized against Question 2 four days before the election. The Death with Dignity initiative was

not, in itself, an answer to the far deeper question of how to help patients make end-of-life decisions . . . Rather than bring society to a consensus on how to approach the end of life, Question 2 adds new and divisive questions to the mix: Should doctors actually help people die more quickly, rather than merely withhold treatment? Does such a regimen serve to weaken society’s belief that lives—even those of the seriously ill, or severely disabled—have value and are worth living? . . . Instead, Massachusetts should commit itself to a rigorous exploration of end-of-life issues, with the goal of bringing the medical community, insurers, religious groups, and state policy makers into agreement on how best to help individuals handle terminal illnesses and die on their own terms.12

In other words, the people of Massachusetts should carefully and thoughtfully consider and discuss this complex issue before passing any laws about it. The choice of assisted suicide might be driven by finances, might be premature, or might not be a choice at all. If people are allowed to do it, they could be coerced, manipulated, or persuaded into it. If we embrace “Death with Dignity,” the elderly, infirm, and disabled might have to end their lives. “If we allow assisted suicide, some people will be forced to die.” What sort of argument is this? It suggests that permission will lead to coercion: that “may” will become “must,” or “can” will become “should.” It is far from being a unique or peculiar type of contention. Analogous arguments are common in other contexts. Consider, for example, the following statements:

1. If birth control is legal, reliable, and convenient, women may be forced to use it and/or be unable to refuse sex.

2. If we allow abortions, women may have to have them.

3. If surrogate motherhood is legal, women will be forced to carry and bear children for others.

4. If we legalize prostitution, women may be forced into it.

5. If we forbid employers to discriminate on the basis of sex, women may have to take jobs that will threaten their health and safety.

6. Unless we reinstate the military draft, the young and poor will have to serve.

7. If we allow same-sex marriage, some couples will be forced into marriage.

Each assertion is a response to an actual or potential liberal reform. Each raises the possibility that a policy change designed to increase individual freedom may also decrease the freedom of the people who ostensibly benefit from the change and increase the power that other people, institutions, and conditions have over them. Predictions of this kind do not have a convenient label. I call them “ironic freedom” critiques because the reforms allegedly result in coercion, the opposite of the literal meaning of freedom. The examples I give raise issues that are important to feminists, liberals, and their critics. I devote this book to the question of ironic freedom.

Ironic Freedom, Liberal Reform, and Feminist Response

Everything is about gender, just as everything is about class and about race. Youth and mortality are gender neutral. The “feminization of poverty” first described thirty years ago has not vanished. Although the recession has impoverished many two-parent, two-worker families, the factors that disadvantage women relative to men—low wages, single parenthood, and the lack of child support—persist.13 Women are more likely than men both to have the responsibility of caring for the infirm and, because of their longer average life expectancy, to live long enough to need care. Liberal reforms are not necessarily conducive to gender equality.

The first and second arguments listed in the previous section never go away. Some prominent nineteenth-century feminists opposed birth control because they viewed sexual intercourse as a duty that women should not have to perform unless they wanted to conceive. “Voluntary motherhood” was the goal, not sex without pregnancy.14 Even after the twentieth-century “sexual revolution” facilitated sexual pleasure for women, thus giving more women more reason to seek sex without pregnancy, the argument that birth control and/or abortion can increase women’s vulnerability to male sexual control has been made by health-care specialists, by groups like “Feminists for Life,” and by radical feminists.15 The fourth argument involves an issue on which feminists remain unable to agree. Those who hold the position articulated here reject the liberal notion that prostitution should be treated like other risky forms of business enterprise. The fifth argument convinced the members of the President’s Commission on the Status of Women, back in 1963, to endorse protective labor legislation, and it persuaded Margaret Mead to oppose the Equal Rights Amendment in the 1970s.16

Affirmative answers to questions like these would surprise no student of American jurisprudence, because “must” and “must not” often entail “may.” The ambiguity and complexity of language turns commands into permissions. Ordering Cinderella to be home by midnight allows her to stay out that long. The United States Constitution contains two qualified rights, both of which include tacit permissions to violate them. Article I, Section 9 implies that the writ of habeas corpus may be suspended “when in cases of rebellion or invasion the public safety may require it,” and the Third Amendment forbids the quartering of soldiers “in time of peace.”17 We have ironic coercion; why not ironic freedom?

Some ironic freedom arguments would be absurd. Universal suffrage does not entail compulsory voting. Though legalizing marijuana might lead to an increase in its use, possibly by increasing social pressure to use it, this step would not force people to use the drug, any more than repealing Prohibition forced people to drink alcoholic beverages. But the reader will have no trouble recalling or inventing plausible arguments with a similar structure. If Muslim girls may wear headscarves to school, their parents will make them do so. If cochlear implants are available, parents may be forced to get them for their deaf children. If more people are allowed to marry, there will be costs for not marrying; this argument could apply to Roman Catholic priests as well as to same-sex couples.18 While I draw on several of these issues for purposes of illustration and comparison, I limit my analysis to the critiques I emphasize here.

This book seeks to “unpack” these familiar responses to liberal positions. Using the statements I have identified as examples of the ironic freedom critique, I explore the underlying presuppositions of the critique and premises of the critics. What are we talking about when we make these predictions? Are they subject to verification, and, if so, how? What would count as evidence for or against them? Another set of questions explores the implications of these predictions: What difference should they make? What conclusions, if any, follow from them? What can we learn from addressing them? What are their implications for law and policy? This book is part of an ongoing project on the possibilities of reconciling liberal and feminist principles into a synthesis I call “feminist postliberalism.” The reader is entitled to know that I support all the reforms I discuss here. Before I began this project, I did not regard the individual rights I discuss here as topics subject to dispute; I accepted them as “givens.” I still do. The ironic freedom critiques have not convinced me otherwise, but I have gained better appreciation of the complexity of these issues.

For convenience, these arguments can be labeled as follows:

Assisted suicide → nonvoluntary death (AS)

Legalizing same-sex marriage → compulsory marriage (SSM)

Legalized sex work → forced prostitution (SW)

No military draft → compulsory service by the poor (DRAFT)

Employment opportunity → forced occupational choices (EMP)

Reproductive freedom →

1. unwanted sex (RC1)

2. compulsory birth control, abortion, or sterilization (RC2)

3. compulsory surrogate motherhood (RC3)

Each statement implies that a policy intended to increase freedom may have the consequence of reducing it. This result is usually, but not always, unintended. RC1–3, SSM, SW, and EMP concern freedom to act: freedom from restraint. DRAFT refers to the freedom not to act: freedom from duty. The statements do not necessarily refute the position that the policy at issue will increase freedom: the reduction might be an additional consequence, or the argument might hold that increasing freedom for some people will decrease it for others. Thus a woman’s control of her fertility may compromise her control of her sexual activity. The “right to die” could morph into opportunities for caregivers and professionals to convince, manipulate, or trick patients into making this choice. Immunity from conscription may have led to a “poverty draft” in which aggressive recruitment and the lack of alternative opportunities could combine to create a reluctant warrior class.

Ironic freedom situations are not all hypothetical or contested; real-life examples exist. The justices who overturned New York’s maximum hours law in Lochner v. New York (1905) apparently thought they were rescuing “grown and intelligent men” from “meddlesome interferences” with their “freedom of contract,” but what invalidating the state’s ma...

Table of contents

• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• Acknowledgments
• Chapter 1: An Introduction to Ironic Freedom
• Chapter 2: Assisted Suicide
• Chapter 3: Sex Work and Military Service
• Chapter 4: Same-Sex Marriage
• Chapter 5: Sexual Choice and Gender Equality
• Chapter 6: Class Privilege and Economic Justice
• Chapter 7: Ironic Freedom and Feminist Postliberalism1
• Notes
• Bibliography