Nanny State Ethics and NYC

by Benjamin Studebaker

Recently New York City mayor Michael Bloomberg has gotten into the business of regulating his citizens’ health choices. Two prominent recent examples come to mind:

Today I would like to discuss whether or not such regulations or “nudge” policies are within the state’s ethical purview. First, let’s look at what sort of argument opponents of these policies have at their disposal:

The Case Against the Nanny State:

The case against is a simple one that is common sense to many people–“what about freedom of choice?”. People holding this view are reaching back to John Stuart Mill’s On Liberty, in which Mill details his “harm principle”. The harm principle says this:

the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right… The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

Under this argument, the health consequences to the obese or to the mother are not social issues because they impact only the individuals making the decision and do not seem to harm others. The harm principle is itself a very attractive one; it maximises liberty and personal choice, but recognises that there is a reasonable limit on liberty when one person’s liberty obstructs another’s in a harmful manner. The question this argument raises, however, is whether or not the behaviours in question really only effect the actors in question. Is society harmed in a measurable way by large soft drink consumption or formula feeding?

The Case For the Nanny State:

Mill writes that “over himself, over his own mind and body, the individual is sovereign”. This would seem to declare the  large soft drink ban excessive. However, there are some important differences between the 19th century state in which Mill lived and the 21st century state of today that are pertinent. In Mill’s time, the state had no socially recognised obligation to pay for the health care of its citizens. A citizen who weighs 300 pounds due to overeating and gets heart disease is not the responsibility of the 19th century state–if he has sufficient independent wealth, he can seek medical care for himself. Most likely, of course, he would be unable to afford medical care, or the medical care he could afford would be ineffective due to technological backwardness, and he would die. In today’s society, however, there is an expectation that everyone will receive medical coverage regardless of wealth. While some societies  achieve this through a state regulated private insurance model with state-run supplements (as in the USA, with private insurance, Medicaid, and Medicare) and some societies use an entirely state run apparatus (as in the UK, with the National Health Service), in both cases the expectation is that everyone’s health will be provided for, and that, at least as a last resort if not all the time, the state is responsible.

If the state is responsible for provision of health care, then the state also gains a financial stake in reducing its own health care costs through preventative measures so that it has more money left over for other spending (be it defence, education, infrastructure, stimulus, or whatever). Citizens who endanger their own health are therefore harming society. If you become a 300 pound individual and get heart disease, either the state directly or a state regulated private system will be responsible to pay to sustain your life and repair the self-inflicted damage. This makes health choices very different in terms of their political implications now than they were in the time of Mill.

The breastfeeding issue is more clear-cut, because failure to breastfeed is scientifically established to harm a person external to the mother, namely the baby. There are also health problems correlating to babies who have not been breastfed, and an argument similar to the one above may be made along those lines, in terms of whether or not the state and society as a whole is suffering.


Yet, for all this, I find myself somewhat dissatisfied. I do not think any of us could disagree that an obese individual buying large soft drinks is problematic for the health system and could be worthy of some regulation in an effort to reduce social expenditure on health care and leave more room for expenditure on other worthy projects, but why impose the same limits on people who do not have a weight problem? While I would never wish to drink a soda in excess of sixteen ounces, I myself am a very thin person, bordering even on underweight. Just as it is an injustice to punish an entire class of students for the problems of an individual, it is surely an injustice to restrict access to a thing from all because it is misused or abused by some.

I can see the justification for nanny state legislation when it impacts health in modern society, but I think it should be more targeted to change the behaviour of the people who are most in need of the regulation. Universally regulating access to sugary foods receives the opposition it does because it is indiscriminate. The accusation of such a law is “you cannot control yourselves, so we will regulate you”. There remain many people wholly capable of self-regulation, and these people do not warrant patronising. Why not have the health system sort the people whose health is at risk and who would do well to adjust their behaviour from the remainder, give the latter cards that free them from all state dietary regulations if they so desire them, and better target the problem in question while preserving liberty where it can be preserved? Surely it is not worthwhile to punish everyone merely to avoid singling out people who have a problem? But of course, this line of reasoning assumes that our priority on health is more or less equivalent to our priority on liberty.

It seems to me that what we have here is a clash of two goods–liberty and health. These goods are in conflict, and the modern state has a dual mandate to provide for both of them, yet, in this instance, cannot wholly do both at once. It is not possible to conclusively prove the one the more important than the other. Bloomberg’s position is that of health before liberty–it is more important to protect the health of the people and reduce the state’s health costs than it is to preserve the people’s liberty. Those in full opposition to this sort of nanny state thinking would take the opposite position, that the regulation is wholly unjustified because liberty must come first. I find myself in the middle camp–I would like some regulation, but I would like that regulation to be targeted to those most in need of it while liberty is preserved for the rest of us.

Readers, where do you stand on the state’s dual mandate to preserve liberty while also preserving health? Which is the greater priority for the state? Leave a comment, if the issue interests you.