Part A: Paternalism and Its Limits
An Introduction to Bioethics.
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:
Almost everyone would override here without hesitation. This chapter is about when that instinct is right and when it is a trap.
Note
By the end of Part A, you will be able to:
Paternalism is interfering with a person’s liberty, without their consent, only because you judge it to be for their own good (Dworkin 2020).
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.
“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
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)
Before overriding anyone “for their own good,” ask:
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.
A ladder of ways a state can push birth rates:
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.
Each defense works by showing the choice is less free than it looks. Much defensible hard paternalism takes that form.
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.
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?
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.
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.
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.
ACOG Committee Opinions 473 / 664:
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)
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.
| 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 |
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.
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.
Bioethics OER · CC BY-NC 4.0 · Brendan Shea