On justifications – portrait of a Flug berserk!

Sometimes sincerity is embarrassing – and now and then, unhealthily, I find myself tempted to embarrassment precisely when I am being intellectually honest, or trying to be.

What I mean by that is: intellectual honesty is something justly to be valued… and, meanwhile, every argument on a controversial subject that is in some way slippery, or covertly pretextual, or downright dastardly wears a big, flashy, diamond-studded tiara marked “Intellectually Honest” as part of the sales pitch! I read many such arguments… When I try to do it right, straight, and on the level – and most of all when I make representation of how I am doing it – I can get flashes of an awful feeling. Part of it is like I sound like a con man. Even worse: part of it is like the crowd around me is all accustomed to it being a sham or a tool or a chess move, and know this to be what the game is like, so that approaching it sincerely is like printing the word SUCKER on my forehead in Magic Marker!

*mutters* Have to watch that.

It came up in the last week or so. I clarified a reaction of mine on something by explaining a philosophical perspective that underlay it – and explained that I wasn’t just making it up now, this had actually been a pre-existing perspective that I had been assuming, although the phrasing was new.

Awkward – the more so because the importance of “coming up with your sorting principles beforehand, not afterward” might itself be news to many people. (Who is this strange person spouting inconvenient bric-a-brac? And why does he think it should overrule specifics?)

Anyway, I was going to show you what happened.

(Maybe it’ll be as fun to read as to write. Miracles can happen.)

Briefly, the FDA, the U.S. Food and Drug Administration, had studied the Plan B One-Step pill – which is emergency contraception, that can be taken up to 72 hours after the sex – and had announced the conclusions of the research, that the pill was both safe and effective, and its decision that Plan B should be available for sale “over the counter” (without needing a doctor’s prescription) and with no age limit. It would have been as possible for a teenager to buy Plan B as for her to buy Tylenol – although Tylenol doesn’t cost $50 per pill, as Plan B does.

I’ll quote a snippet from FDA Commissioner Margaret Hamburg’s statement on the approval:

It is our responsibility at FDA to approve drugs that are safe and effective for their intended use based on the scientific evidence. The review process used by CDER to analyze the data applied a risk/benefit assessment consistent with its standard drug review process. Our decision-making reflects a body of scientific findings, input from external scientific advisory committees, and data contained in the application that included studies designed specifically to address the regulatory standards for nonprescription drugs. CDER experts, including obstetrician/gynecologists and pediatricians, reviewed the totality of the data and agreed that it met the regulatory standard for a nonprescription drug and that Plan B One-Step should be approved for all females of child-bearing potential.

I reviewed and thoughtfully considered the data, clinical information, and analysis provided by CDER, and I agree with the Center that there is adequate and reasonable, well-supported, and science-based evidence that Plan B One-Step is safe and effective and should be approved for nonprescription use for all females of child-bearing potential.

Up to now, the Plan B was kept behind the pharmacy counter and the sales to people under 17 required a doctor’s prescription. (Which would typically involve the parents finding out or being aware of the matter.) Now the FDA was saying this was changed.

Then, in an unprecedented action, the HHS, the Department of Health and Human Services, the larger organization, overruled the FDA’s decision.

HHS Secretary Kathleen Sebelius said that the FDA’s research had not established that the age limit should be removed. She said that that her reversal of the decision was based on the possibility of unknown effects of Plan B on the developing bodies of girls on the youngest possible edge of the age range in which pregnancy is possible, around 11.1 years.

From Sebelius’ memo:

It is commonly understood that there are significant cognitive and behavioral differences between older adolescent girls and the youngest girls of reproductive age, which I believe are relevant to making this determination as to non- prescription availability of this product for all ages.

Then, the next day, President Obama said that he approved of Sebelius’ decision. What he said was a little broader.

I will say this, as the father of two daughters. I think it is important for us to make sure that we apply some common sense to various rules when it comes to over-the-counter medicine. And as I understand it, the reason Kathleen made this decision was she could not be confident that a 10-year-old or an 11-year-old go into a drugstore, should be able — alongside bubble gum or batteries — be able to buy a medication that potentially, if not used properly, could end up having an adverse effect. And I think most parents would probably feel the same way.

(What I think of these things will come up later.)

There was loud reaction. Roughly speaking, the demo-political side that disapproves of the reversal has been of a Democratic-side stripe – i.e., the people who could have said this is their Administration – and follows reproductive issues. The side that doesn’t have a problem with the reversal, or that approves of it, is of a somewhat more conservative cast, although not always, and also focuses on an additional angle that neither Sebelius nor Obama mentioned or chose to mention: the question of teens being able to buy the Plan B contraception without their parents’ knowledge or permission. (It’s been suggested that the Obama Administration doesn’t want to offend or alienate those voters, although Sebelius has denied that she made the decision for political reasons.)

So, that’s the background.

I could have gone a number of ways and focused on a lot of angles with this situation, but I’ll be showing only the direction I did go.

I began by simply furiously agreeing in Facebook about the Obama Administration “siding against science” on this matter, a frequent formulation in criticism of the reversal – and also agreeing with this piece slamming Obama for going from his identity as a father to “as a father” unthinking paternalism:

*sigh* Deciding on the basis of science, 0 – showing that Democrats aren’t really a bunch of paternalists, 0 – showing that at least when Democrats are paternalistic they do it on the basis of science, not on gut feelings and knee jerks, 0 – making unforced errors, 1.

The reversal isn’t being done on the basis of safety issues. The FDA studied those questions and did make aconclusion. (And, as the piece says, Sebelius and Obama are making an unwarranted division between this safety-for-kids question and a whole lot of exactly parallel safety-for-kids questions.) This is being done on the basis of *an amorphous fear of* safety issues – which actually sets aside the research, “never mind that” – and on “does that seem right to you?” (Being done for reasons, I have to presume, of unease with the whole topic… which never has to justify itself directly because it’s cloaked in the ersatz safety-matter suggestions.)

Or just on, “Nah.”

Not a good way to make government decisions. And, for people who worry that the government feels free to choose its regulations for reasons that need not be firmly founded, it’s not reassuring.

Which outburst I thought was good enough for the mess. And maybe it was.

But I take a second look at things when I encounter someone else who doesn’t think one of my premises should be there, or someone who doesn’t use one altogether.

A few days later I encountered an essay by Jonathan Adler on the blog The Volokh Conspiracy that questioned in dead-on fashion the notion that “safety” and “effectiveness” had to have been the proper bases on which to decide.

There was a lot at which I kind of squinted my eyes in Adler’s essay. He went, from a statement that science could not determine a right priority, straight to a picture in which any and all priorities had a say in what the FDA decision might have been – and I suspected, or thought I dimly discerned hints of, Adler’s own preferences among the stew of characterizations of differing priorities that he mentioned. In which case he’d be leapfrogging from saying that science couldn’t show a right priority to using that to defend one… but that wasn’t what interested me.

I did think that safety and effectiveness should have been the criteria for the FDA, and I did think that other things should not have intruded… and there were whole shadowy-lit spools and coils of reasons for that, back behind my eyes and reaching back through other times and other issues, that were loaded into the judgment. And I had not articulated what those reasons were.

This needed mending.

And so I wrote one of those long Facebook notes that I don’t expect anyone to read. I’ll paste it in here forthwith. And it really is rather broad, and goes further than I get around to sketching… Here it is.

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After reading some more reactions to HHS Secretary Sebelius’ reversal of the FDA’s determination that the Plan B contraceptive should be available over the counter without an age limit, and to President Obama’s endorsement of that reversal, I realized that I hadn’t really been clear, in my own (splenetically dyspeptic) outburst, about why I thought this was wrong.

(Reading other people is great for that. You discover that other people are using the same words you used with entirely different thoughts behind them, and that still other people are interpreting those words in still other ways.)

For what it’s worth, what sparked this explanation was reading this piece by Jonathan Adler on the blog The Volokh Conspiracy, and also the rambunctious comment thread that followed it.

http://volokh.com/2011/12/09/hhs-secretary-overrules-fda-decision-on-plan-b/

You may find the comment thread interesting and entertaining, and I found the way Adler approached the issue peculiar in a few respects, but what particularly sparked me was Adler’s main point. Adler says in his closing sentence,

Science is relevant here, but it does not dictate the policy choice.

His argument is that science cannot in itself choose what priorities to have. This is true.

His argument goes on to say that the choice of policy can be motivated by any number of possible priorities, and by any number of possible choices and balancings between priorities.

I would say that this is incomplete.

To introduce what I think is incomplete about this summary, I’ll use a rough parallel to the idea I have in mind. In the 2005 Supreme Court case of Kelo v. New London, the Court upheld a use of eminent domain that I thought was wrong. The city used its power of eminent domain, through condemnation, to force acquisition of homes – and did so, not for purposes of public works (as in the “for public use” in the Fifth Amendment), but to turn the properties over to a private developer for private development that the city had approved… the justification being that the city hoped that the development would foster economic benefits, economic growth, and resulting increased tax revenue. The city argued that this “public purpose” fit the “public use”.

What I wrote about the business a year later was this:

There are multiple angles of the decision… (which I’m enjoying the novelty of not treating in depth…)

But the core of it was that the city did it because the city wanted to help and foster the well-being of the economy, and this was an accepted role of the government, as much as the more specific “public uses” like bridges.

Now, what can we say about economic reasons? About governments trying to grow the economy? How do we characterize this?

Do such efforts work reliably? Not necessarily and frequently not.

Are the right ways of trying clear? Not necessarily, and less than the first.

Can it have many shapes? Yes.

Can they involve anything? Just about.

Surely this reason must have some nature. What is the common, definable factor in all this? I can think of only one I am sure of.

Hope.

The city hoped that the market would go well, and that things would go well for its citizens individually and severally, and many new sports cars would tootle happily around the city, hopefully not too many red sports cars because those people are maniacs…

The populace of course held the same hopes, as in most places. (Who wouldn’t?)

By admitting “fostering the economy” as a legitimate public purpose for eminent domain (a change from “public use”), the Court has admitted a reason to use public power to take away one’s property that is very hard to differentiate from PUBLIC ENTHUSIASM FOR DOING SO.

Sheer storm winds of public will can, in this interpretation, take your property, just so they might get a new set of sneakers!

This is a long way from your granddaddy’s property rights.

To use a property-rights metaphor about this situation (… apt, isn’t it?), if Measure 37 extended your property line out past the stars you could see standing on your property, this decision has you out on the street.

***

Hope is unlimited, undefinable, and demanding.

It’s worse than white gold.

With a political surge behind it, it will break the Arc of Time.

Using Hope as a entity with its own claim and force within consideration of rights questions is like opening one of the Acme Company’s “canned hurricanes” while standing on a suspension bridge made out of thin strips of mirrored Mylar film, during a full moon…

i.e, spectacular.

Another way to explain the same thing (less dramatically) would have been to lean on the importance of specificity of exceptions to general rights. (If an exception to a right doesn’t have to be specific, that is inconsistent with the premise that the right does exist at all.) As: the proper shape of the power of eminent domain, if it is to exist, must be for specific, limited and well-defined purposes and manifestations of those purposes, as in public works.

Something analogous – not directly or completely, for one thing I wouldn’t attach it to rights questions so directly, but in a way – applies here too. Or, that’s how I pick up the question of the importance of “going with the science” or of “the considerations being limited to safety and effectiveness.”

Safety and effectiveness are both well-defined subjects. Not perfectly well-defined; both are involved subjects that can get less clear when you go into them, and there can certainly be vast amounts of both sincere and mendacious b.s. involved in debates that do focus on safety or effectiveness. But it is certainly possible to distinguish when the discussion is a discussion of safety or effectiveness, and both have to do with real-world reference and can be investigated.

I’m going to say that basic justifications for government restrictions have to be clear and well-defined.

When we go the other ways and we assume that unclear or impressionistic justifications for government restrictions are sufficient for the restrictions, a landscape picture results. This landscape picture has two parts I’ll say are crucial.

The first part is that, if a vague justification will do, there is no presumption of liberty by default. That matter of the presumption of liberty carries two emphases: it can refer to the 14th Amendment presumption of liberty, or to the American cultural presumption of liberty, but it can also refer to the government’s side of things, that the government is inactive by default, and is supposed to be inactive by default, unless there is clear and solid reason for it to be active.

What I’ve just typed is the side that would very often be that of traditional conservatives or of libertarians, that, depending on the focus, liberals might sometimes join in.

The second part is the other way around: a side that would often be that of liberals, that, depending on the focus, libertarians and conservatives might sometimes join in.

It’s based on the presumption that, if a regulation or restriction is to be there, it should be justified. This includes the assumption that whether it is justified or not should be knowable. That assumption has to include the further assumption, or meta-assumption, that whether it is justified or not should be knowable in principle.

One can investigate the safety of such-and-such, or the effectiveness of such-and-such; one can investigate the underlying factual questions that “safety” or “effectiveness” hinge on. It’s certainly possible to come out with a bunch of people disagreeing over the answers, but the matter is addressable by reason, and the question can be winnowed down to empirical bases that aren’t going to be rationally disputed as cruxes in principle, except by someone who isn’t rational or isn’t being honest. And there are going to be defineable and verifiable circumstances under which a safety justification or an effectiveness justification is not justified; these reasons are going to be falsifiable. Reason encompasses safety and effectiveness.

What about vaguer pretexts for a restriction? There can be nothing unreal about those considerations for people who are worried about them; I might be concerned with some of them. The problem with them is the degree to which it isn’t going to be possible to tell whether those pretexts are “right” or “wrong”. And, to the extent that pretexts are allowed with such characteristics, the emphasis in debate over restrictions is going to shift away from worrying about real justification or verification, and toward an emphasis on just winning – on getting one’s way, on getting one’s reaction’s way.

To be sure that I’d be talking to everyone in writing this, above I divided what’s at issue here into two parts tailored for two foggy ideological lobes, but really what’s at issue here doesn’t stay separate; it’s all one. If possible justification can be vague or “just because”, then there is no “limited government”, because anyone can be reaching for the controls to tilt the plane his or her way for any reason at all. There isn’t any picture where government is inactive by default or where government has to determine or prove that a restriction is justified before doing it; the default can be a continuous, gurgling, nonrational sea of mandatory presumptions that someone simply wanted. And there’s nothing rational about that. Demands for rationality are now just someone’s particular slogan.

As applied to this matter? Does the lens I’ve been describing apply?

I’d say it has to. (I’m answering Adler’s proposition that safety and effectiveness should not be the only reasons that are applicable, but I have to predicate what I say by looking at the “safety” reason for the overruling. I’m going to say it’s not the reason; it’s cover. The FDA already investigated safety issues with adolescents, with research; Sebelius referred to a lack of absolute proof that undefined dangers of some sort could not apply to people on the young edge of the range. Impossible demanded degree of proving a negative, together with totally undefined danger requiring no evidence, sufficient to overrule actual research that has been done… there is nothing here. And – together with the fact that a lot of medications are sold free and easy over the counter that would be much more dangerous to take handfuls of – the “safety” concern that an adolescent might irresponsibly take a whole handful of pills that are sold individually at fifty bucks each… that’s not a reason; that’s an alleged reason at which those who like the conclusion toward which it drives are supposed to point while nodding frantically.)

Without that cover, I can see nothing that would go through the sieve. There is an argument for parental control of adolescents… that would have the state be the parent of all children in accordance with the wishes of some parents who wouldn’t want their own child to buy the Plan B and some parents who would want to have to know in order for their own child to buy it. The general pattern of things for sale is not that adolescents may not buy anything without their parents, or that their parents must be there and say that they approve of all purchases, whether or not some parents wouldn’t like some purchases. The point is not to shut down this argument; the point is to say that how to decide if it is right or wrong is vague. Just agreeing with it or thinking that it seems right does not answer the question.

Whatever values one doesn’t or doesn’t find important: a system that contains either a presumptive liberty, or an expected requirement that government regulations be justified, or both, has limits on the ways in which it can or should follow a values pattern. This is one respect. (I should say that this is not boilable down to simply competing values of some sort, as I hope I have demonstrated. I found Jonathan Adler’s characterization of the people who said that the Administration should have gone with the science, or with the safety and effectiveness criteria, as simply angrily objecting to a restriction on the sexual agency of young people rather blinkworthy.)

A “doesn’t seem right” isn’t enough for a government restriction.

The reasons I’ve just described may seem rather austere, but they simply apply. And they’re an additional factor that interrupts an uninflected picture of a mass of priorities and desires and preferences all fighting and trying to win.

And – a word on “common sense.” (I’m referring to what Obama said in endorsing the reversal, which was the other thing that spurred me. It would have been the visceral end of the spurring.) Anytime that someone refers to “common sense” as a justification… I won’t go into whether “common sense” “exists.” I don’t need to. Just, whenever someone says “common sense,” find out what underlies that, because what underlies that is what will need to be examined for soundness. And if you can’t find what underlies it, or if “common sense” is the real substance being pointed at, that won’t do. Or shouldn’t do. From any political perspective.

I should say that I didn’t come to this praxis as a result of this specific occasion. (Did I use “praxis” correctly? I don’t know what it means, but the back of my head says I did. Heck with it, I won’t look it up.) The pattern pre-existed this, and has been an assumption I’ve carried that has been part of my evaluation of other questions about judgment of laws and of government decisions, though I don’t know if I’ve written it out as such before. The phrasing is also parallel to another explicit criterion I’ve used in the past, with similar implications. The reason I’m saying this is that it’s extremely important to come up with one’s abstractions before encountering the priority-matters to which one applies them – because, if one doesn’t, it is extremely easy to fool oneself and to come up with the proper abstractions (one will call them “principles,” flatteringly) to use in support of the conclusions that one likes for vaguer reasons or that one wants to make unquestionable. Autohypnosis into very sincere propagandizing is very near to hand when one reaches for reasoning… and it’s important to remember that being rational remains a verb, not a state of being or a level of sobriety that one has reached and made reliable.

Was all of that halfway clear? I hope it was. It applies to a lot more than this question.

There are some tangent propositions that would fit here but that I didn’t go into, for clarity. If anyone wants to go into them, I’ll respond. :o)

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“Praxis” is completely the wrong word. It doesn’t mean what I felt/guessed. I’ll leave it in as a demonstration of how often I’m flying blind. :o)

And I do think the particular relation I’ve described is something I should hold with. I’m not going to launch into a further discussion of its social implications, or of a couple of underlying assumptions that I left out but that it suggests, because I’d like to look at noter reactions to see if those things even matter.

And I think it holds together, and is intellectually honest enough as far as I can tell…

… but, yes. There is something “nude at the winter-clothing convention” about coming out with this sort of earnest effort, and talking about how the earnestness is important, in a context where I’m not sure how many people would be focused on trying to do the same thing, as consciously or otherwise. The net is unreassuring in this respect. It can make me have to suppress dark background inklings about how far off the real social trail “Alex the Literal” could have wandered… I wouldn’t admit it in Facebook, but I figure you can stand the admission in here, here being more reassuring in the first place. :o)

So, what do you think of the argument or the view?