An alternative approach to the contraception coverage issue

I don't have an ethical problem with Romneycare's support for mandating birth control coverage by religiously-run institutions doing secular activities like running hospitals, with similar provisions in many states, or with similar provisions in Obamacare.

Another way to handle this issue though is to require the same total level of financial commitment from religious employers and then let them choose something additional to cover, to make up for their decision not to cover contraception.  Their hospital employees can get breaks on plastic surgery, while other hospitals' employees get contraceptive coverage.  No financial reward accrues to a religiously-based resistance to coverage, and secular employees can keep the coverage differential in mind when deciding which jobs to apply to.

This could be done even more broadly:  rather than every insurance provider being required to cover the same standardized basket of services, just figure out how much that basket would cost for your average provider, and tell other providers that they can choose a different basket so long as that different basket, if paid for by the average provider, cost at least as much as the standardized basket.  If they can then figure out a way to do things differently and cheaper, then more power to them.

I doubt these solutions are allowable currently, but maybe that could change someday.  I generally prefer determining the fair cost approach for someone who wants to deviate from a standard, like requiring lifelong coma/quadraplegia insurance for motorcycle riders who don't want to wear helmets, rather than simply telling them what they can or can't do.


UPDATE:  Apparently I should clarify.  I was comparing replacement of contraceptive coverage with something trivial like plastic surgery not in order to indicate that contraceptive coverage is trivial, but that employers IMO are unnecessarily and significantly reducing the value they provide to employees if they really want to follow this unwise path.

UPDATE 2:  Just like I don't have a problem with the original proposal, I don't have a problem with the new one.  The cost issue is less than entirely clear to me - if it's really the case that it saves insurers money, then that's fine, but if the coverage costs money on net, then there's the question of who pays for it.  And the Catholic Bishops want to exempt not just the religious charities but any business run by Catholics from the same obligations as other business, which is a real race to the bottom if the exemption saves them money.  And there's self-insured Catholic charities, but they're getting ever further afield from religious service and being more like any other business entity in that case.  I still think the best approach would be to develop a basic cost basket, and a clear, mandatory disclosure of when the insurer deviates to add and subtract from the standardized basket.

What the heck, UPDATE 3:  my classmate Laura MacCleery battles it out on Fox News.

A Volokh non-correction on the Texas polygamy mess

Not only am I agreeing with the Volokhs, I'm agreeing with David Bernstein of all people there: there's something very screwed up about how Texas is physically seizing and temporarily shipping to foster care all the hundreds of non-infant children from the polygamist compound, with no individualized determination of risk to each child before seizing the child.

The rule of law exists for a reason.

Edwards will stop FBI raids on medical marijuana clinics

Maybe there's a reference to this somewhere that I missed before, but in this YouTube clip, John Edwards says he will stop the FBI raids on medical marijuana clinics, and that the FDA should reassess the role of medical marijuana.

This puts Edwards in a pretty similar position as Obama. It's not a Chris Dodd position, on the other hand, but it still represents a tremendous improvement over Bush and the present Republican candidates.

Score a point for Dodd last night

Dodd said at last night's debate that he supports legalizing marijuana, a position opposed by all other candidates. My usual favorite, Edwards, said legalizing "sends the wrong signal" - a variant on the slippery-slope argument technique that I hate.

Dodd was good last night, as was Biden (surprisingly). Obama was okay, Edwards was okay, Clinton her usual evasive and competent self. Richardson, my second favorite, wasn't so good.

Clinton said she wants to keep the estate tax exemption set at $7 million per couple, which is insane. Edwards wants it at $4 million, which is still too high, but better.

I think Dodd might be my third favorite now, although I don't see him as a real contender.

Republican (and Democratic) hypocrisy on homosexuality

There's an excellent post at the Volokhs on how conservative homosexuals are treated in the Republican party:

First, nearly all the gay Republicans working in Washington or elsewhere are to one degree or another closeted. Second, very few Republican officials care whether someone is gay.

From the top of the party to the bottom, few Republicans personally and viscerally dislike gay people. President Bush has had friends he knew were gay. So has Vice President Cheney. Even the most prominently and vigorously anti-gay Republican, Sen. Rick “Man on Dog” Santorum, had a gay spokesperson whom he defended when his homosexuality became known.

The big, open secret in Republican politics is that everyone knows someone gay these days and very few people – excepting some committed anti-gay activists – really care. It’s one of the things that drives religious conservatives crazy because it makes the party look like it’s not really committed to traditional sexual morality.

So to keep religious conservatives happy the party has done two things. First, it has steadfastly resisted efforts to ease anti-gay discrimination in public policy, even when Republican politicians know better. I can’t tell you how many Republican staffers told me, for example, that their bosses privately opposed the Federal Marriage Amendment but would be voting for it anyway.

While the poster denies this is hypocritical, I'd disagree. On the other hand, the same claim could be made about Democratic politician attitudes to gay marriage. They know it should be legal, but won't say it.

The Democrats come out much better than the Republicans on this issue overall - I think the Republicans also, mostly know that gay marriage should be legal, and the Republicans are much worse on all other gay issues. But the Democrats aren't blameless.

For what it's worth, I think Edwards and possibly Obama are leaving the door open to supporting or at least being truly neutral on gay marriage in the near future, possibly before or during their second presidential term if elected. It's something, but it's no guarantee, it'll likely depend on polling, and it's not perfect.

Guest post on Rights to Privacy, and Police use of Evidence

(A guest post from Dana S. -Brian)

Some people think police use of human DNA that we leave on cups we handle and throw away, or spit we leave on the pavement, is a violation of our privacy. That is absurd. If we are out in public, whatever we do there should be susceptible to examination by police if they suspect us. It is similar to a policeman seeing us doing something. If I am innocent of wrongdoing, my DNA is not going to match up with the perpetrator's DNA at a crime scene, and I am exonerated. (Maybe some of the uproar is due to general ignorance of the science of DNA testing and how strong it is as evidence? Are there a lot of Luddites out there?)

Same thing with video cams on every street corner - more power to the police. Those cameras are not penetrating through the window curtains - if they did, THEN that would be an improper invasion.

On the camera question, those of us here in Florida have the absurd law that a criminal charge will not stick from just a camera photographing a red-light runner. There has to be an enforcement officer observing it. As a result, red-light running, and the accidents resulting therefrom, are some of the highest violations we have here. One of my family members got hit twice in 6 months by red light runners. The authorities are now trying to get around that by photographing just the car license plate (not the driver), and issuing a traffic citation (with a substantial fine) to the owner of the car - that is, until the first time it is challenged in court.

If I am missing something here about my rights to privacy being IMPROPERLY trampled, would someone please let me know?

Dana S.

(Your editor responds: I don't have any problem with the use of DNA evidence from discards, or the use of appropriately-situated surveillance cameras like red light cameras. I do, however, have a problem with becoming an always-watched, all-the-time surveillance society like Britain is becoming. There's nothing illegal about government cameras tracking every inch of city sidewalk, but I think there is a gray-area problem with this affecting privacy to the level of decreasing the quality of life. Anonymity is itself a form of privacy protection, and the loss of anonymity in an all-surveillance society is a problem, I think. Anyway, I'm sure Dana would be happy to read and respond to other people in the comments.)

Egads, I'm inconsistent!

I have some trouble reconciling my attitude towards a post at Feministing, about the difficulties young people have in finding someone to sterilize them, with my attitude towards pharmacists who won't give the Plan B contraceptive pill, or with my attitude towards the Supreme Court decision on the "partial birth abortion" case.

The Feministing post and subsequent commentors talk about the great difficulty that young people under 30, including men but especially women, have in finding a doctor willing to perform sterilizations on them. The doctors always say "when you're older you might change your mind about having biological children" and refuse to do it. An occasional refusal by a doctor wouldn't affect people much for this non-urgent surgery, but because the vast majority of doctors refuse, it makes the whole process extremely difficult.

Most of the commentors have a problem with this. I don't.

But, I do have a problem with pharmacists who refuse to give the "morning after pill" out to women, and with Justice Kennedy's decision in the Gonzales v. Carhart case that because some women eventually regret their decision to have an abortion and suffer psychological harm, "the Court deprives women of the right to make an autonomous choice" (quote from the dissent).

So am I just as bad as Kennedy? A Feministing commenter notes that young people can get plastic surgery easily but not sterilization because plastic surgery is about conforming to societal expectations. Am I imposing my own views?

Maybe. There's a difference though between "difficult" (obtaining sterilization) on one side and "legally prohibited" (abortion ban) or "practically impossible" (pharmacists not giving urgently needed contraceptives) on the other side. If I'm imposing my views, at least there's a limit as to how far I'll go.

And as for the Feministing commentors who think they're consistent, I question whether they'd stay consistent if we talked about 18 year olds or 16 year olds requesting sterilization instead of twentysomethings.

The reasonable libertarian and small business discrimination

Many people might not know that some federal anti-discrimination law in the US doesn't apply to small businesses with less than fifteen employees. Aside from the administrative and political reasons for the exemptions, I think there are libertarian reasons for intruding more on business practices for larger businesses than small ones:

• Relative power of a larger business to a job applicant greater than a small business.
• Market forces that would punish discriminatory small businesses operate less efficiently against big ones.
• Discrimination by a small number of large firms quickly becomes a problem for applicants.
• Small firms are usually closely held while large ones have more owners or are publicly held, so the level of regulatory intrusion on an owner is greater for a larger firm.
• Breaking a society-wide discriminatory collusion only requires enforcement against some actors, and market forces will bring along the rest.
• Larger businesses "feel" more public, so public regulation is more appropriate for them.

What this fails to acknowledge is that culture is a powerful force intruding on private agreements and on markets, so it takes a long time for anti-discriminatory laws against large businesses to modify small business discrimination. Some libertarians think discrimination in the American South would have disappeared even without federal laws. I agree that change in the rest of the US would've affected the South, but they'd be years behind where they are now, which is still bad in many places.

This doesn't tell us what the balancing point should be between small business and big business. It depends partially on the level of intrusion. Requiring all businesses with public accommodations to serve everyone is less of an intrusion than requiring them to hire everyone. It all depends on the individual issue. The point though is that applying the law only to larger businesses isn't just a compromise, it actually makes sense.

The Reasonable Libertarian and Girls Gone Wild

At first glance, the proposal by Garance Franke-Ruta to raise the age of consent for someone to be viewed or filmed nude coincides well with the Reasonable Libertarian concept of transitional adulthood. Her idea, primarily, is to protect 18-20 year-old women from future humiliation for drunkenly consenting to being filmed naked by predators like the Girls Gone Wild video makers.

I'm unconvinced though on both practical and libertarian grounds. She hasn't been very specific about what she herself proposes, although she later supported the idea of a required waiting period for consent to be effective. This alternative removes some objections, except that it would be impractical unless applied only to people filmed in private locations, and not applying it to public locations virtually eliminates its usefulness.


Then there's the libertarian issue. I like the transitional adulthood idea, but not applied blindly to protect people from all self-imposed harm. The transition is a period for people to handle whatever bad upbringing or economic suffering in their childhood that drove the person to do something dangerous. Prostitution and professional boxing strike me as dangerous and things that 18 year olds are likely to fall into because something was screwed up in their upbringing. Being viewed naked, for pay or for no reason, doesn't fall into that category. Some people might not regret it (Schwarzenegger, Stallone, Madonna) and others who consider it a mistake might learn from it with relatively little harm.


A strong feminist might disagree about upbringing affecting a young woman's willingness to disrobe at the urging of the men around her. I understand that point, but people should be allowed to learn from mistakes (if that's how they see them). And anyway, the proposal is impractical from the perspective of getting video cameras off the spring break beaches and Mardi Gras streets.


A final note - I really dislike Garance's language choice, that this isn't a restriction on consent, it's "a greater right to control their own erotic images until age 21." Give me a break and just call it what it is. This framing stuff can go too far, like her implicit argument that the freedom (to consent) is (a form of) slavery.


(Despite writing all this, btw, I think Garance is a valuable blogger.)

General Pace shouldn't apologize, but should be fired

Thought I'd use my typical, lighting-quick blogger reflexes to comment on the two-week-old story about General Peter Pace refusing to apologize for saying the homosexual soldiers under his command commit "immoral acts." I disagree with calls for an apology, and give him the benefit of assuming it's his considered belief and not a thoughtless mental twitch. No one should apologize for what they think is right - the concept of an apology doesn't even make sense.

But he should be fired - his beliefs are contradictory to the morale and well-being of thousands of soldiers underneath him. Hiding behind the idea that he condemns their acts, not their orientation, is just ridiculous. He did acknowledge that he should not have focused on his own personal views, but it's too late. He can't be an effective leader of homosexuals who are allowed to serve in the military, and should be forced out.

(Of course, that won't happen.)

The Reasonable Libertarian and the ethics of assassination

At first glance, a reasonable libertarian might consider Glenn Reynold's enthusiasm for assassinating radical Iranian mullahs and atomic scientists to be a "small government" approach, and Reynolds might even think he's returning to his libertarian roots following his armchair leadership in Iraq. I'll just note that as a policy matter, "no government" as in no assassinations and no wars of conquests, can often be superior to small government. Maybe assassination can sometimes be helpful, but at least in the case of radical mullahs, getting caught doing what Saddam tried to do to Bush Sr. would be the exact opposite of helpful.

And then there's the small matter of whether it's ethical. I disagree with Kevin Drum (linked above) who calls all killing of civilians "terrorism". Those civilians and high-ranking politicians who are intimately involved with the military may as well be wearing a uniform and are legitimate military targets. But Reynolds wants to kill all the radical mullahs, not just high-ranking ones, and if Iranians aren't working on a bomb, then killing their scientists is also wrong. Reynold's ethical screen needs a great deal of tightening.

Assassination and other threats of force could be appropriate for an ethical or even a competent presidency to use in dealing with Iran, but that's not what we have, and Reynolds is making a mistake to encourage this behavior.

Why reasonable libertarianism results in more liberty than simplistic libertarianism

Yes, I am spinning it by using "reasonable" and "simplistic" terms for libertarians, something the simplistic libertarians might object to. Still, I think the terms apply well to a discussion I heard on NPR's Talk of the Nation called "The Privacy Train Has Left the Station." The radio segment features simplistic libertarian Katherine Mangu-Ward of Reason Magazine. She says that because there's no reasonable expectation of privacy in public places, there's little reason to worry about the growing proliferation of cameras monitoring every person's every step, recording it forever, and being instantly available to government snoopers. Her main concern is that nobody ever tell private property owners what to do or not do with cameras.

This mirrors what a Volokh Conspiracy post called "the longstanding division between those who endorse an absolutist interpretation of libertarian principle versus those who take a maximizing approach." Mangu-Ward can't see a gray area in the loss of privacy due knowledge of one's activities becoming so much more widespread, so it's no problem. Reasonable libertarians like myself do see a problem, and while the solution is less clear, acknowledging a problem is the first step.

I'm not going to deny the advantages of cameras. I think a camera trained on a bicycle rack increases liberty by allowing people to ride bikes that don't get stolen, more than it decreases liberty by monitoring people for the brief time they're locking their bikes (I've had many bikes stolen over the years). Carefully targeted cameras might be the solution.

More broadly, I think the loss of privacy might possibly be inevitable, and it might not be all bad - maybe we'll learn to be who we are and not care who knows about it. But pretending there's no problem with this future, and therefore doing nothing to nudge the future in the right direction, is simplistic.

P.S. Some discussion of reasonable libertarianism over at Kevin Vrane's renovated digs, No Se Nada.

P.P.S. In Mangu-Ward's defense, she evolves partially beyond simplistic libertarianism in the Op-Ed she wrote on the camera issue:

The New York police recently announced plans to create "a citywide system of closed-circuit televisions" operated from a central control center, funded primarily by federal antiterrorism money.

Admittedly, this is where the surveillance nation gets dicey. Concerns about misuse of public cameras by authorities are reasonable, and violations should be punished. Several cases now wending their way through the courts are expected to set standards regarding proper uses of, and punishment for abuse of, surveillance.

She needs to keep moving in this direction.