The Right to Risk Your Life

In the 1870s and 1880s, Americans kept dying, or losing limbs, because they were getting hit by trains. Now, you might say, who cares? It’s people’s own fault if they are stupid enough to walk onto a train track. That’s not, it turns out, how Americans and their governments reacted at the time. As the casualties mounted, the state railroad commissions — relatively new agencies set up to monitor and regulate railroad safety — “conclud[ed] that enough was enough; no man had a right to willfully risk his life.”

So writes Barbara Young Welke in her fascinating work of legal and cultural history, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865-1920. When I heard about the other night’s GOP primary debate, in which Dr. Ron Paul emphasized the need for “personal responsibility” and audience members cheered the notion that a man who decides not to purchase health insurance should be allowed to die, I immediately thought of Recasting American Liberty. The book is a study of how the rise of railroad corporations — which greatly expanded but also increasingly controlled Americans’ freedom of movement — transformed the way Americans defined liberty. It seems that we may be living through the painful contortions of a similar transformation. In an age where ever-more advanced forms of medical treatment are both provisioned and controlled by pharmaceutical, hospital-management, and insurance corporations, we are trying to figure out if Americans should have the right to risk their lives.

Maybe I thought of Welke’s book because Massachusetts plays an outsize role. Today, Mitt Romney finds himself on the defensive for championing legislation, as governor of Massachusetts, that hampered his constituents’ autonomy in order to save their lives. In the 1880s too, Massachusetts was a pioneer in curtailing individual autonomy in order to safeguard individual health. At common law, if you trespassed onto a train track and were run over, the railroad company had no liability (unless it had gone out of its way to show “reckless or wanton disregard”). In rejecting that common-law tradition, Welke writes, “Massachusetts self-consciously led the way, asserting that the state had a positive duty to prevent the ‘slaughter’ of trespassers.” Welke quotes from an 1889 report in which the Massachusetts board

firmly rejected the “cold-blooded argument that these persons would not have been killed or injured had they not been doing that which they had no right to do.” “If there is a remedy for the slaughter, — if people can be prevented from falling victim to their own imprudence on railroad tracks, — then to allow the slaughter to continue savors more of barbarism than of civilization.”

Looking to Britain and Germany as models, the board urged railroads to eliminate at-grade crossings, build barriers to the tracks, post warning signs emphasizing legal penalties for trespass, and so on. What was at stake — and maybe someone should ask Ron Paul about this in the next debate — was where to assign responsibility:

Instead of placing fault and responsibility on the individuals who endangered their own lives (and indirectly the lives of others), the Massachusetts board took for granted their violation of law, their imprudence, and placed fault and responsibility on itself, railroads, and the legislature for failing to erect adequate barriers (both physical and legal) to trespassing.

Welke’s study is far-ranging; this example is just one of many case studies she offers. All end in much the same way: with Americans assigning responsibility for railroad injuries not to those injured, but to the railroad companies and, by extension, the states that regulated them. Thus were the states assigned the duty to safeguard against predictable risks to life and limb. As Welke emphasizes, this outcome wasn’t inevitable. Given their “individualistic ethos,” Americans might instead have decided “to interpret injury in terms of self-responsibility.” But for whatever reason, they did not. (Intriguingly, Welke argues that Americans may have been more open to adjusting the law in this area because the plaintiffs in railroad injury cases were often women, whose vulnerability to injury, unlike men’s, was not viewed as shameful.)

Thus, in the modern age of “corporate power” and high technology, did Americans come to believe that “individual liberty depended upon state protection”:

At the heart of state safety regulation was the recognition that the assumptions underlying the ethos of a nation of free men no longer reflected, if they ever had, the reality of daily life. In a world alive with danger, giving due warning was not enough. Human vulnerability, not mastery, marked men’s encounters with technology. Safety could not be left to individual choice.

At the core of all debates about railroad safety, then, was the same basic question, which Welke articulates pithily: “To what extent did liberty include the right to risk one’s life?”

The health care debate can be understood as a new variation on this same question. To what extent does liberty include the right to risk your life? Are you allowed to forgo health insurance — even though we will all regret it if you die (or most of us will, anyway), and we will all pay indirectly for your emergency room visit if you’re injured? One might imagine this question to be much easier than the question of how to deal with trespassers on a train track. After all, anyone, no matter how poor, can easily choose not to run through a railroad crossing. In contrast, health insurance is expensive, and the best coverage plans are usually attached to a job as employment benefits; the poor simply don’t have the same range of choice in the matter as the rich. It’s predictable that a person barely making rent is not going to choose voluntarily to budget an extra few hundred dollars a month to insure against the speculative risk that he might get sick or hurt; surely we should regulate this decision in some way, or maybe remove it altogether? And yet, as the GOP debate indicates, many Americans seem to believe that it’s a person’s inviolable right to decide whether to insure himself against illness or injury — that a government mandate to do so is tyranny.

Many self-proclaimed “progressives” have made the mistake, in the health care debate, of dismissing out-of-hand people’s concerns about the government telling them what to do.[*] Sarah Palin’s talk of “death panels” may have been overwrought, but it hit a real nerve. Welke emphasizes the point repeatedly: “Liberty secured by the state [comes] at a cost to individual autonomy.” Sometimes we decide the costs are trivial, or worth it — for instance, safety gates on a streetcar, so passengers can only get on and off at designated stops. Sometimes we realize, even if it takes years for judges and legislators to come around, that the costs are grievous. About a third of Welke’s book is devoted to the Jim Crow laws that assigned black passengers to separate cars — the better to insure railroad safety and order, of course. To assume that the cost to autonomy of a health insurance mandate falls in the former category, and not the latter, is to assume precisely the premise that needs to be proven to many American voters. The debate is winnable, but it won’t be won with eye-rolling.

Many self-proclaimed “Tea Partiers” have made the mistake, in the health care debate, of dismissing out-of-hand people’s concerns about dying — not because they have a disease our society’s doctors don’t know how to cure, but because they can’t afford the medicine. As the history of railroad regulation demonstrates — and make no mistake; railroad regulation is saving lives and limbs as we speak — it’s sometimes necessary for the government to curtail our autonomy in order to safeguard a higher liberty. I don’t know that a mandate to purchase insurance is the best way to guarantee universal coverage; many thinkers I respect suggest that a single-payer model would be more effective. But the goal of universal health care in itself, however achieved, should hardly be seen as an infringement upon liberty. Universal health care safeguards your liberty to go about your daily life unhindered by worry about how you’ll cover your health care costs. It removes health care as a factor in your thinking about whether to quit your job, or whether to go back to school, or whether to stay home and take care of your children. It removes your ability to pay as a factor in how much you suffer. And yes, it removes your “personal responsibility” as a factor in how much you suffer. That, I would argue, is not something to lament. We humans are all of us irresponsible in one way or another. And we have each other, in this world, to save each other from our irresponsible selves.





[*] Relatedly, see Adam Winkler’s post on how defenders of PPACA must be able to provide a better account than they yet have of how the Constitution might permit the individual health care mandate yet still provide meaningful limits on congressional power.

3 thoughts on “The Right to Risk Your Life

  1. Here is Jonathan’s mother putting in her 2 cents. Terrific article. I believe your last paragraph could be the single most effective reasoning for mandated universal healthcare that I have read to date. What ever one’s concerns are (mine hinge upon the Federal Government’s ability to manage such a program, and maintain a high level of care) your article gives reasons for us as a nation “to give it a chance”. Well done indeed!!

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