Lecture 5 — Autonomy, Paternalism, and Reproduction

Part A: Paternalism and Its Limits

Brendan Shea, PhD

An Introduction to Bioethics.

A Demand in the Delivery Room

A woman in the second hour of labor is in extreme pain. She has had a dose of IV opioid that leaves her drowsy and slurring. Between contractions she grabs the rail, says she is “done with all of this,” pulls at the fetal monitor, and demands to sign herself out and go home. Her partner is frightened. The nurse believes she would not say this an hour from now.

Write or discuss:

  1. Should the team take her demand at face value and start discharge paperwork? If not, why not?
  2. What exactly is it about this refusal that makes overriding it feel safe — when overriding a calm patient’s refusal would not?
  3. How long may the team “wait her out” before stalling becomes a way of simply ignoring her?

Almost everyone would override here without hesitation. This chapter is about when that instinct is right and when it is a trap.

After You’ve Discussed

Note

  • Almost no one thinks we must take that demand at face value. We override people “for their own good” all the time — small children, a friend’s car keys, an unconscious patient in the ED.
  • So the interesting question is never whether such overriding is ever justified. It is where it stops — and what separates the override we’d all accept from the kind that becomes tyranny.

Today

By the end of Part A, you will be able to:

  • Define paternalism and state Mill’s harm principle.
  • Distinguish soft from hard paternalism by whether the overridden choice is compromised or competent.
  • Say where a state’s incentive becomes pressure, and where pressure becomes coercion.
  • Place policies aimed at pregnant women on a soft-to-hard ladder, and state what Ferguson v. City of Charleston held.
  • Explain deterrence-of-care, and why punitive prenatal policy produces worse outcomes.

The Millian Framework

Paternalism, Defined

Paternalism is interfering with a person’s liberty, without their consent, only because you judge it to be for their own good (Dworkin 2020).

  • The “only because” is what makes it paternalism.
  • A seatbelt law that protected only the wearer is paternalism.
  • A drunk-driving law is not: it protects other people on the road.
  • Mill treats those two cases completely differently.

Why the “only because” matters. Many real laws have mixed motives. A cigarette tax protects the smoker (paternalism) and raises revenue and reduces secondhand smoke (not paternalism). When we ask whether a policy is “justified paternalism,” we are asking about the part of its justification that appeals to the chooser’s own good.

Mill’s Harm Principle

“The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.… Over himself, over his own body and mind, the individual is sovereign.”

— John Stuart Mill, On Liberty (1859), ch. 1

(Mill 1863)

  • Read strictly, this bans paternalism: the state may stop you from harming others, never only yourself.
  • Mill’s own exceptions: children, and the man about to cross a bridge he doesn’t know is broken. You may stop him until he knows.

Soft vs. Hard — The Real Dividing Line

The line is not how forceful the intervention is. It is what kind of choice you are overriding.

Soft paternalism Hard paternalism
Overrides a choice that is… compromised — coerced, ignorant, incapacitated, or impaired competent, informed, and voluntary
What you’re really doing restoring or protecting the person’s own agency substituting your judgment for theirs
Mill’s verdict permitted — it isn’t a real override of a sovereign choice forbidden — this is the line he draws
The bridge stopping the man until he knows the bridge is out stopping him after he knows, because you think living is better

Whether a given choice is compromised enough to count as soft is the judgment the hard cases turn on. (Feinberg 1986)

The Three-Question Test

Before overriding anyone “for their own good,” ask:

  1. Is the person competent — able to understand and weigh the facts right now?
  2. Is the choice voluntary — free from coercion, manipulation, and (in the hard sense) from addiction or false information?
  3. Does the harm fall on the chooser alone, or also on others?

If the honest answers are yes, yes, and chooser alone, Mill says: leave the person be. A “no” on question 1 or 2 opens the door to soft paternalism. A “no” on question 3 takes the case out of paternalism entirely. The genuinely hard cases are the ones where every answer is yes and we still want to step in.

Where Is the Line?

A ladder of ways a state can push birth rates:

  • A: free contraception and parental leave
  • B: a $10,000 tax credit per child
  • C: a $100,000 tax credit per child
  • D: priority housing for families with three children
  • E: tax penalties on childless adults over 30
  • F: a ban on contraception (Romania, 1966)
  • G: forced sterilization (China; the US, 1907–1979)
  1. Where does incentive become pressure, and pressure become coercion?
  2. Run step C and step E through the three-question test. What changes between them?

A Hard Case We Already Accept

You cannot buy morphine, oxycodone, or fentanyl without a prescription, even as a competent, fully informed adult. By Mill’s strict line that is forbidden hard paternalism. Nearly every country keeps it anyway.

  • Addiction changes the chooser. The first dose is a competent choice; dependence degrades every dose after.
  • Information is lopsided. Few patients can judge dose, interactions, and overdose risk.
  • The harm is fast and irreversible. Mill’s case for liberty leans on learning from mistakes, and an overdose cannot be learned from.

Each defense works by showing the choice is less free than it looks. Much defensible hard paternalism takes that form.

Pregnancy as a Paternalism Problem

When the Second Party Enters

  • Mill’s third question, does the harm fall on the chooser alone?, assumes a single body. Pregnancy is the standard case where it does not.
  • That creates pressure to reclassify a pregnant woman’s self-regarding choices as other-regarding, moving them outside the zone Mill protects.
  • Poverty, addiction, an abusive partner, or no childcare often narrow her real options. That does not license overriding her, but it belongs in the judgment.
  • The paired case, Adriana Smith, is the limiting case: declared brain-dead at nine weeks pregnant in Georgia in 2025, her body was kept on machines for four months over her family’s objection.

A Spectrum of Interventions

The aim, protecting the future child, is pursued with tools from mild to coercive.

Intervention Example Type
Risk messaging “No safe amount” of alcohol; broad deli-meat, sushi, soft-cheese cautions, sometimes overstating thin evidence Soft (information-shaping)
Transient medical override Waiting out the sedated, pain-flooded laboring patient’s demand to leave Soft (capacity restored)
Mandatory reporting Newborn toxicology → child-protective referral and a Plan of Safe Care Mixed — services or surveillance, by state
Criminal prosecution Prenatal drug use charged as child abuse or homicide Hard — a charge pregnancy alone creates

Climbing the ladder, the overridden choice gets more competent, so Mill’s case against interfering gets stronger, and the empirical record gets worse.

The Question, Stated Sharply

May the state charge a pregnant woman, on the basis of her pregnancy, with a graver crime than the same act would carry in anyone else?

  • The conduct in the drug cases is already an offense. Outside pregnancy, methamphetamine use is at most simple possession; here it is charged as child abuse, chemical endangerment, or homicide.
  • A fetal-harm theory is doing the work, and it is not limited to illegal drugs. It already reaches alcohol, prescribed medication, and refusing recommended care.
  • The question takes no position on the moral status of the fetus. It asks about an enforcement practice and whom it reaches.

Ferguson v. City of Charleston (2001)

In the late 1980s, the Medical University of South Carolina in Charleston began a secret urine drug-testing program on some pregnant patients. Positive results went to police. Hospital staff wrote the rules; the local prosecutor signed off. Triggers included things like “no prenatal care.”

Ten of the eleven women arrested were Black. The eleventh was a white woman whose chart noted she “lives with her boyfriend, who is a Negro.”

Important

Held, 6–3 (Stevens, J.): When the program’s main goal was to gather evidence for police, it was a Fourth Amendment search needing consent. The secret testing was unconstitutional.

Not decided: whether testing tied to treatment (no police) would be allowed, or whether civil steps short of arrest raise the same problem.

(Supreme Court of the United States 2001)

Tennessee’s Fetal-Assault Law — and the Data

2014. Tennessee made it a misdemeanor to take a narcotic during pregnancy “if her child is born addicted to or harmed by” it.

2014–16. About one hundred women were arrested, mostly in poor rural counties. Drug-use rates in pregnancy did not fall. Women reported avoiding prenatal care; some gave birth at home, alone, to dodge the hospital drug test.

2016. The legislature let it sunset.

What the national data show. Faherty et al. (2019), studying 4.5 million births, found states with punitive policies (criminal charges, civil commitment, or reporting as abuse) had a 27% higher rate of newborn drug withdrawal — the very outcome the laws were sold as preventing.

This is deterrence-of-care: a policy that drives the people it claims to protect away from the care meant to help them.

Neonatal abstinence syndrome (NAS) — newborn opioid withdrawal — is the set of symptoms (tremors, feeding trouble, sometimes seizures) a baby shows after in-utero opioid exposure. It is treatable, and most babies do well with good care. It is also the diagnosis punitive reporting laws claim to reduce — and don’t.

(Faherty et al. 2019)

The Scale, and a Name

  • Paltrow and Flavin counted 1,396 arrests and forced interventions on pregnant women in the US from 1973 to 2005: 71% low-income, 59% women of color. The most common charge involved drugs; the second, refusing care.
  • In 2021 an Oklahoma jury convicted Brittney Poolaw, 21, of first-degree manslaughter for a pregnancy loss at about seventeen weeks. The medical examiner found no cause, and the state’s own toxicologist said the trace methamphetamine was not clearly the cause. About one in five pregnancies is lost on its own at that stage. She was sentenced to four years.

Read the number carefully. 1,396 is not the count of pregnant women who used drugs. It is the count who were charged, jailed, or forced into a procedure.

Dorothy Roberts’s Killing the Black Body (1997) explains why these patterns track race and class.

(Paltrow and Flavin 2013; Roberts 1997)

Where the Profession Draws the Line

ACOG Committee Opinions 473 / 664:

  • Substance use in pregnancy is “a medical condition that should be managed with the patient.”
  • Criminal charges and forced detention are “not effective in reducing” drug or alcohol abuse and are “contrary to the welfare of the mother and the fetus.”
  • Testing without consent is rejected; CPS reporting “depends on state law.”

Why this is more than an opinion.

ACOG’s ethical claim (manage it as medicine, don’t punish) and the population data (Faherty: punishment → worse withdrawal rates) point the same way.

That kind of agreement between an ethical argument and the empirical record is rare enough to carry real weight.

(American College of Obstetricians and Gynecologists 2011, 2016; Faherty et al. 2019)

Thought Question — A Patient on Methamphetamine

A 32-week-pregnant patient arrives in early labor. Her urine is positive for methamphetamine. She has had three prenatal visits, no other problems, and says she used “yesterday, maybe the day before.” State law requires reporting drug exposure to CPS; the hospital may choose whether to involve police.

Write or discuss.

  1. Which rows of the pressure-spectrum are in play here, and which would you actually use?
  2. The attending asks whether to call CPS now or after delivery. What is the right answer, and why?
  3. Does your answer change if the drug is alcohol? Fentanyl? Cannabis that is legal in this state? Be honest about why.
  4. Since Dobbs, prosecutions for pregnancy outcomes have risen from about fifty a year to at least 412 in two years, nearly all for substance use (Pregnancy Justice 2025). Does that change what you do at this bedside?

The Cases, Sorted

Case Choice being overridden Soft or hard? Verdict
Sedated laboring patient A demand made under transient incapacity Soft Override briefly, to restore her real choice
Prescription-only opioids A competent adult’s purchase Hard Defensible, by showing the choice is less free than it looks
Reporting newborn drug exposure A mother’s privacy Mixed Depends on whether the state runs it as services or surveillance
Criminalizing prenatal drug use A pregnant woman’s conduct Hard Backfires: deterrence-of-care, worse outcomes

The One Idea

Mill’s line is simple; life is not.

Leave competent, informed, freely-choosing adults alone. Step in only to protect others, or to protect a choice that is compromised — and then only as much as it takes to give the real choice back.

Every hard case is a fight over one word: voluntary.

Most defensible paternalism wins by showing the choice was less free than it looked — addiction, youth, transient incapacity, pressure. Most indefensible paternalism loses by ignoring what its enforcement does to the very people it claims to help.

Review Questions

Write a brief answer to each, or use them as discussion prompts.

Recall

In your own words: what separates soft from hard paternalism, and why does Mill permit one but not the other? Give one example of each.

Apply

A state proposes a steep tax on high-sugar sodas to fight diabetes. Use the three-question test to argue whether this is soft or hard paternalism — and whether that makes it easier or harder to justify.

Debate

Pick one: prescription-only opioids, the 21 drinking age, or criminal charges for prenatal drug use. Argue that the policy gets the paternalism question right or wrong, and say what should replace it.

Key Terms

  • Paternalism
  • Harm principle
  • Soft paternalism
  • Hard paternalism
  • Three-question test
  • Deterrence-of-care
  • Neonatal abstinence syndrome
  • Plan of Safe Care (CAPTA)

References

American College of Obstetricians and Gynecologists. 2011. Committee Opinion No. 473: Substance Abuse Reporting and Pregnancy: The Role of the Obstetrician-Gynecologist. ACOG, Reaffirmed 2021.
American College of Obstetricians and Gynecologists. 2016. Committee Opinion No. 664: Refusal of Medically Recommended Treatment During Pregnancy. ACOG, Reaffirmed 2022. https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2016/06/refusal-of-medically-recommended-treatment-during-pregnancy.
Dworkin, Gerald. 2020. Paternalism. The Stanford Encyclopedia of Philosophy (Fall 2020 Edition), Edward N. Zalta (ed.). https://plato.stanford.edu/archives/fall2020/entries/paternalism/.
Faherty, Laura J., Ashley M. Kranz, Joshua Russell-Fritch, Stephen W. Patrick, Joel Cantor, and Bradley D. Stein. 2019. “Association of Punitive and Reporting State Policies Related to Substance Use in Pregnancy with Rates of Neonatal Abstinence Syndrome.” JAMA Network Open 2 (11): e1914078. https://doi.org/10.1001/jamanetworkopen.2019.14078.
Feinberg, Joel. 1986. Harm to Self: The Moral Limits of the Criminal Law, Volume 3. Oxford University Press.
Mill, John Stuart. 1863. Utilitarianism. Parker, Son,; Bourn.
Paltrow, Lynn M., and Jeanne Flavin. 2013. “Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Health.” Journal of Health Politics, Policy and Law 38 (2): 299–343. https://doi.org/10.1215/03616878-1966324.
Pregnancy Justice. 2025. Pregnancy as a Crime: An Interim Update on the First Two Years After Dobbs. Pregnancy Justice. https://www.pregnancyjusticeus.org/resources/pregnancy-as-a-crime-an-interim-update-on-the-first-two-years-after-dobbs/.
Roberts, Dorothy E. 1997. Killing the Black Body: Race, Reproduction, and the Meaning of Liberty. Pantheon Books.
Supreme Court of the United States. 2001. Ferguson v. City of Charleston, 532 U.S. 67. United States Reports. https://supreme.justia.com/cases/federal/us/532/67/.