Loren Lomasky teaches philosophy at Bowling Green State University, Bowling Green, Ohio, and is the author of Persons, Rights, and the Moral Community. This article is adapted from a paper published by the Competitive Enterprise Institute.
A John Elway forward pass travels toward its receiver at over 70 miles per hour; Randy Johnson’s fastball darts from his hand at over 90 miles per hour; Pete Sampras’s serve booms across the net at 120 miles per hour. Unless you know how to play the game, you’re advised to stay safely away. But should you find yourself in even a minor fender-bender, you may be on the receiving end of an air bag deploying at up to 200 miles per hour.
For most people most of the time, impact with an air bag is benign compared to what they would have hurtled against had they been traveling unprotected. Although the air bag affords less protection than the seat belt, the air bag is, on balance, a wonderful safeguard. Since 1990 over 3,500 lives have been saved and numerous injuries averted, the National Highway Transportation Safety Administration says.
But the air bag’s benefactions do not come free of cost. Although deployment usually produces nothing worse than soon-healed bruises, a significant minority fares worse: over 120 people have been killed by air bag impact, almost always in low-speed accidents from which they otherwise would have walked away.
Any fatality is cause for regret of course, but realism compels us to acknowledge that few valuable interventions come altogether without cost. People die on operating tables during routine surgery, drown while enjoying an invigorating swim, get hit by lightning while out on a golf course. We can and should try to minimize the occurrence of such tragic outcomes, but as Milton Friedman famously observes, there is no such thing as a free lunch. Air bags save on the order of 30 lives for each one lost. It would seem on first blush that this lopsided ratio is an eloquent testimonial to the regulatory regime that mandated them in all new vehicles. Few public safety measures, we might say, can claim so enviable a record of success.
Complicating the appraisal, however, is the fact that air bag fatalities do not occur at random. Most victims of air bags are children (66 of the fatalities since 1990), typically infants or toddlers traveling in the front seat either unbuckled or strapped into child carriers. The air bag is most forceful as it leaves the dashboard, and carriers, especially backwards-facing ones for infants, bring their occupants closer to the point of explosion. Already vulnerable because of their small size, being in a forward location heightens their risk. Otherwise innocuous collisions produce crushed skulls, even a reported decapitation in an Idaho parking lot. Also at considerable risk are the very old, the very frail, and short drivers who seat themselves close to the steering column. For them the air bag is not a friendly bodyguard but potentially a weapon that maims and kills.
By requiring manufacturers to install air bags in all new cars, the federal government is, then, not simply mandating a policy that confers substantial benefits on the population at large, albeit tempered by occasional harms. Rather, governmental policy deliberately and knowingly enhances the safety of one identifiable group of citizens at the expense of another. It literally has redistributed expected life years between these two classes.
Last fall, the government sought to address this problem in its characteristic way. Instead of permitting freedom of choice so people can select safety features tailored to their own circumstances, it proposed fine-tuning the rules to take into account that small and unbelted bodies may be in the seats. The auto industry fears the newly mandated air bags will be as dangerous as the first generation of bags that threatened children and small, frail adults. Even if this attempt at central planning of technology works, it won’t take effect until 2006. (Earlier, the government tried to address the danger by allowing qualifying citizens to have a disabling switch installed.)
Some observers find troubling all governmental edicts designed to protect people against themselves, to force them “for their own good” to act in ways they less prefer or that attempt to engineer compliance by subsidizing officially approved behavior and laying taxes and other penalties on that which is disapproved. For one who takes the free society seriously, this sort of governmental paternalism is odious. I confess I am troubled by these incursions on individual choice. If people wish to drive around in their cars unbelted or dispense with helmets while motorcycling, choose to smoke cigarettes or consume slabs of marbled beef followed by gooey chocolate desserts, I may regard their decisions as imprudent. But if those engaging in these behaviors are competent adults I do not see that I—or anyone—enjoys the prerogative of constraining them to do otherwise.
One need not be a dyed-in-the-wool opponent of paternal government to be disturbed by regulations that protect us from ourselves. That’s because they contravene broadly shared moral principles that address the acceptability of forced tradeoffs across persons and that govern the relationship between a liberal government and its citizens.
Ends in Themselves
There is no more fundamental principle of ethics than the proposition that human beings are special. Each person manifests a uniqueness that confers a dignity that no mere thing possesses. They are not interchangeable components of a social whole who may be plugged in and plugged out like chips in a computer. In the Western tradition of moral reflection, this understanding has been expressed in many forms. One is the theory of basic human rights that establish zones of limited sovereignty within which individuals may act without interference so long as they respect the similar liberty of others. Another is the traditional natural-law doctrine which insists that no otherwise good state of affairs can be pursued if doing so requires acting with injustice toward another human being. Yet another version is the Hippocratic Oath’s insistence, “First, do no harm.” But this moral insight was perhaps best expressed by the German philosopher Immanuel Kant when he insisted that human beings, whether oneself or another, are not to be used as mere means for someone’s projects but rather must always be treated as ends in themselves. Although it is not altogether certain what this dictum comes to, there are clear cases of its application to which there is general assent. They spotlight what is morally distinctive about persons. Let me offer a few simple examples.
Although it is entirely reasonable to take apart one auto to salvage parts that will restore five other vehicles to operability, it is strictly impermissible to mine one healthy person’s body for organs that could be transplanted to save five other individuals. Similarly, it is unacceptable to frame an innocent person in a kangaroo court so as to mollify the mob milling ominously about. Fraud and deceit evince a willingness to manipulate the beliefs and desires of others so as to render them instruments for one’s own designs; assault and rape run roughshod over the essential embodiedness of persons; theft is the action of treating someone as a resource one may freely plunder for one’s own ends; murder is literally the obliteration of personhood. Using others as mere means achieves its most fully developed institutional form in the practice of slavery.
It seems hard to avoid the conclusion that insofar as current air bag policy knowingly advances the life prospects of one group of citizens at the expense of another, it violates this most fundamental of moral precepts. It also puts in jeopardy the bedrock principle of liberal democratic government, political neutrality. Briefly, this is the requirement that the state not take sides concerning the projects and pursuits of its citizens. Individuals acting in their private capacity are free, of course, to be passionately partisan with regard to their religious creeds, ideological convictions, aesthetic tastes, and conceptions of the good life; the state, though, is not permitted to anoint winners and losers in these disputations. Rather, its role is to be the fair and impartial enforcer of the rules under which individuals operate, an umpire rather than a player in the game.
If air bags were options that car buyers could select if they desired, but forgo if their individual circumstances so dictated, then no class of individuals would be forced to be the unwitting instruments of others’ ends; the government would not be acting with partiality toward some at the expense of others. Note that even those who qualify for the disabling switch are nevertheless financially penalized by the mandate. Do we really believe it acceptable for the government to penalize those who wish to safeguard the health and lives of their loved ones?
Protection for the Imprudent
As noted at the outset, air bags burst out at speeds of up to 200 miles per hour. If they were less forceful they would still adequately protect motorists who are belted in, but those who neglect to use seat belts will sometimes suffer injuries that high-speed air bag deployment could have obviated. There is, then, a tradeoff implicit in the regulation as it stands: it affords greater protection to the lazy and imprudent at the expense of babies and others. Make no mistake about it; there is nothing in the technology that renders this tradeoff unavoidable, and the government says it’s now interested in air bags with adjustable deployment speeds. But today’s dangerous air bag was deliberately engineered through governmental mandates.
If all air bags could be disabled via a standard switch, then foolish or unwise drivers might forgo protection that they would be better off having. To protect them against themselves, parents are impeded in their efforts to better protect their children. Can anyone reasonably deny that these examples of regulatory partiality are morally bizarre?
One response that the National Highway Traffic Safety Administration has offered in the wake of revelations about air bag injuries and fatalities is that children under 13 should not, whether in car seats or otherwise, be placed in the front seat. The intended implication is that children are not so much the victims of air bags as they are of parental malfeasance.
The point is, to an extent, well taken. To assign credit or blame to regulators does not absolve parents of responsibility. However, this response hardly gets the regulators off the moral hook. First, it does not address the issue of other vulnerable populations such as short drivers and the elderly. Second, it sometimes is impossible or impracticable to place all child passengers in the back seat. And third, it is in tension with a regulatory structure that is predicated on the assumption that individuals are not competent enough to be left to make their own choices. At the very least, then, it is a piece of bad faith to downplay the enormity of the human costs air bags impose by protesting that they would be lower if people were generally more provident.
What will the regulators say in defense of their position? They might argue that to impose on social policy the condition that it produce only winners and no losers is unrealistically idealistic, indeed unworldly. Virtually nothing could traverse so high a barrier. For example, polio vaccination has mostly eliminated in this country what was once a deadly scourge. Yet each year some individuals come down with polio, in almost every instance from the vaccine itself. Should we allow the return of polio epidemics rather than accede to these very occasional instances of harm due to inoculation?
That objection misfires because the analogy on which it rests breaks down. To be sure, some individuals who are vaccinated would have been better off had they not received the vaccine. However, we cannot tell in advance which ones they are. For each person getting the vaccine, the ex ante probability of a polio-free life is augmented. Probabilities are not certainties, so ex post some will find that they have pulled the short straw and are worse off. That’s too bad for those who lose, but it does not falsify the proposition that for all players it was a good bet to take.
Such is not the case, however, with air bags. Babies and small adults are placed in jeopardy so that those older and larger can be afforded greater protection. The regulators know this now, and the record indicates that they knew it back in the late ’70s when air bag regulations were initially being promulgated. So a closer analogy would be to a world in which vaccine is produced by knowingly and deliberately inflicting some with full-blown polio so that their tissues can be harvested and used to confer immunity on others. Would we regard that as acceptable social policy?
Regulation’s Opportunity Costs
There are numerous other grounds for questioning the federal government’s air bag mandates. Insistence on universal employment of this one safety device precludes experimentation that might generate better alternative safety measures. If cars are made more expensive by the requirement that they carry air bags, then car owners will have less money available to spend on other safety-enhancing measures. (The new generation of bags might add as much as $160 to the car’s price.) For example, they may not be able to afford to get their vehicles serviced as often as they otherwise could. Perhaps they will be forced to drive around longer in older, relatively unsafe automobiles rather than purchase newer, relatively safe ones. Or with the money freed up by not purchasing an air bag, consumers could purchase larger vehicles that better withstand crashes. (At least they could if the government did not discourage manufacture of big cars that burn more gas than little cars. This is yet another irony transfixed like a hapless fly in the regulatory web.) It is also the case that individuals differ in the strength of their needs and desires for enhanced safety. Someone who drives defensively and who routinely uses his seat and shoulder belts may quite reasonably judge that the increment of safety afforded at the margin by an air bag does not justify its cost.
These grounds for opposing mandatory air bags commonly pop up in the policy debate. Each is essentially based on an economic way of thinking that bids us to be aware not only of the benefits that we procure through our expenditures but also their associated costs. In calling these reasons economic I do not mean thereby to disparage them. To the contrary: such efficiency considerations are central to rational policy-making. However, they often spawn a response to the effect that issues of public safety transcend dollars-and-cents calculations. Life is too precious, it will be said, to be stuffed into Procrustean cost-benefit computations; morality ought to trump mere monetary considerations.
I could not agree more. This discussion has insisted that morality does indeed matter. It has, however, seriously called into question whether federal bureaucrats and so-called consumer advocates genuinely do occupy the moral high ground. The fact that air bags on balance save lives does not necessarily secure for them this position. There are other criteria that must be met, criteria such as treating individuals as ends in themselves and not bending the technology of governance to the service of some classes of citizens at the expense of others. It is simply unacceptable to save lives by knowingly forfeiting others.