My Body My Choice with Ilya Somin

On this episode, George Mason Law's Ilya Somin joins me and UVA Law students Joseph Camano ('24) and Dennis Ting ('24) to discuss the full implications of "My Body, My Choice." Somin argues that the principle has implications that go far beyond abortion (including paying kidney donors, and abolishing the draft and mandatory jury service) and that both liberals and conservatives are inconsistent in their application.

ILYA SOMIN is Professor of Law at George Mason University and the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute. His research focuses on constitutional law, property law, democratic theory, federalism, and migration rights.  He is the author of  Free to Move: Foot Voting, Migration, and Political Freedom (Oxford University Press, 2020, revised and expanded edition, 2021), Democracy and Political Ignorance: Why Smaller Government is Smarter (Stanford University Press, revised and expanded second edition, 2016), and The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press, 2015, rev. paperback ed., 2016), co-author of A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (Palgrave Macmillan, 2013), and co-editor of Eminent Domain: A Comparative Perspective (Cambridge University Press, 2017).  Democracy and Political Ignorance has been translated into Italian and Japanese.

Further Reading:

Ilya Somin bio, George Mason Law School

Ilya Somin, Democracy and Political Ignorance: Why Smaller Government is Smarter (Stanford University Press, revised and expanded second edition, 2016)

Ilya Somin,  Free to Move: Foot Voting, Migration, and Political Freedom (Oxford University Press, 2020, revised and expanded edition, 2021)

Transcript

[00:00] Ilya Somin: Maybe this is prudish of me, but I personally don't really want to see the bus for, like, there's open sexual activity going on. But I'm fine if there is, like, a free sex bus or a free love bus out there, so long as there are other competitive alternatives where I don't have to go on that bus.

[00:17] Kim Krawiec: Hey, hey, everybody. Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to sell, but do anyway. I'm your host, Kim Krawiec. On this episode, George Mason Law's Ilya Somin joins me and UVA Law students Joseph Camano and Dennis Ting to discuss the full implications of “My Body, My Choice.” Somin argues that the principle has implications that go far beyond abortion, including paying kidney donors and abolishing the draft and mandatory jury service, and that both liberals and conservatives are inconsistent in their application. Ilya Somin is a professor of law at George Mason University and the B. Kenneth Simon Chair of Constitutional Studies at the CATO Institute. His research focuses on constitutional law, property law, democratic theory, federalism, and migration rights. He is the author of “Free to Move: Foot Voting, Migration and Political Freedom,” “Democracy and Political Ignorance: Why Smaller Government Is Smarter,” and “The Grasping Hand: Kilo v. City of New London and the Limits of Eminent Domain.” Thanks so much, you guys, for agreeing to be hosts for our very first podcast for this year.

[01:35] Dennis Ting: Yeah, of course.

[01:37] Joseph Camano: Very excited to do it.

[01:38] Kim Krawiec: First of all, introduce yourselves to our listeners.

[01:42] Joseph Camano: Sure. So I'm Joseph Camano. I am a 3L here at the law school, and originally am from Virginia Beach.

[01:49] Dennis Ting: Yeah. And my name is Dennis Ting. I'm a 3L at UVA Law as well. Originally from Maryland, but I've bounced around a little bit, spent the last few years in Kentucky before coming to Charlottesville.

[02:02] Kim Krawiec: As you know, we have Ilya Somin with us today, and we're going to be talking about issues of bodily autonomy, and in particular, “My Body, My Choice,” and his argument that this one is really directed towards liberals—he has plenty of complaints with conservatives as well—but that really, liberals are inconsistent in their approach to recognizing bodily autonomy. So I guess the first thing is what drew you guys to the paper? What interested you about it? What did you like about it?

[02:34] Joseph Camano: I think sort of you just highlighted it right there. What really interested me about Ilya’s article was just how willing he was to take the “My Body, My Choice” argument to its end across the board, across all types of subject matter. So I'm really excited to get to hear straight from him his opinion and just how committed he is to that position when pressed a little bit on it.

[02:58] Kim Krawiec: Yeah, I am, too. I think he's going to be really committed to it, but we'll see, right? So I'm with you. I'm looking forward to that. Sorry, Dennis. Go ahead.

[03:06] Dennis Ting: Yeah, no, I was just going to kind of echo what Joseph was saying. I think it's a really interesting topic, and I think it's very interesting on a theoretical level, but it kind of sounds like from his writing, he's not willing to stop it at the theoretical level. And so I think there are a lot of really interesting ideas like legalizing organ donation—well they wouldn't be donations, but like an organ market or prostitution. And those are ideas that have been floated around. But then you talk about things like no mask mandates and no lockdowns. And I think there's, to a certain extent, some problems with that where people that—you mentioned, liberals—looking at that argument, might say, well, that's a step too far and they're not willing to go that extra step. So definitely interested to see what his thoughts are on that.

[04:00] Kim Krawiec: I'm also interested in hearing how he responds with some of the hypotheticals that you guys came up with in class or some of the questions that you guys came up within class. I'm sympathetic to his general point, actually. I agree that liberals are pretty inconsistent when it comes to “My Body, My Choice,” and wish that they would take issues of personal and bodily autonomy more seriously than I think happens sometimes. At the same time, and we're going to get to this in some of the questions, there are pretty big differences across some of the categories that he's talking about, both in terms of things like potential externalities as well as things like the level of intrusiveness. Some of these are fairly minimal intrusions on bodily autonomy, and some of them are very great intrusions on bodily autonomy. And so I'm just sort of interested in hearing from him about that. So we've talked about what you liked about the paper, what drew you to the paper. What do you want to ask him about in the paper or have him elaborate on or clarify?

[05:08] Joseph Camano: Sure. One of the biggest things for me was I have a quote from him here. He says, I do not believe any right should be absolute, and then follows that idea up with a great enough harm might justify restraining virtually any liberty. So he did leave that piece open. I'd be interested to hear from him what types of harm he's thinking of when he says that. Specifically whether those harms need to be, say, bodily harm to another person or if that could even just be simply financial harm or something less serious. So love to hear him expand a little bit on that idea.

[05:45] Kim Krawiec: Yeah, I think that's a really good question, so I'm sure he'll be happy to answer that. I'm looking forward to hearing it. What about you, Dennis?

[05:53] Dennis Ting: Yeah, I think that issue of the balancing act between bodily autonomy and the great enough harm is really interesting to me as well and to a lot of our classmates. I think for me, one of my big questions was how do you measure what is a great enough harm? Is there an objective way to view this? Because I think what might be considered a great enough harm to one person might not be to another person. You think of COVID-19—a lot of people at this point, they think, oh, it’s a cold, that’s not a great enough harm. But then you have people who are immunocompromised and to them it could be a matter of life and death. So I'm curious to hear what he has to say about that. And also on the idea of calculating great enough harm, I'm curious how you make that calculation. I think one thing that he mentions is that he is against government-imposed lockdowns. And one of the reasons for this is that the effectiveness in limiting COVID-19 or promoting public safety isn't quite worth the restriction on bodily autonomy. But we only have statistics and evidence of the effectiveness of these lockdowns because we did it. And so if you're at a position where we were in the early stages of 2020, how do you do that balancing act when you don't have all the evidence there?

[07:26] Kim Krawiec: Yeah, I think these are all really good questions. Right, I mean first of all, I won't even say it's easy because it's still not easy, but as a theoretical matter at least, it is easier to make these distinctions when we have a good estimate of costs and benefits. But as you guys have pointed out in your questions and in our earlier discussion, sometimes that's not going to be the case. Either uncertainty will just persist, the answers will only emerge later, and policymakers just won't have perfect information at the time they're making decisions. And then the question is going to Joseph's question of what counts as a harm, but even if we can get agreement on what counts, it's going to be different for different people. Right? I mean, you guys both brought up COVID-19 and one thing that has been sort of a recurring theme is for people who are particularly vulnerable during the pandemic, who are immune compromised or otherwise feel that they are particularly at risk, sort of feel like that they haven't been a part of the conversation as much. Obviously, these have been very contentious issues, so I think it’s sort of not easy to get at. Anything else that you guys are looking forward to him talking about?

[08:42] Joseph Camano: Yeah. Actually so I had some thoughts on seeing whether or not he factored in the ease at which misinformation is spread in the modern day, if that had any effect on his balancing test because I know a big factor for him in his article is that individuals themselves are able to correctly estimate the amount of risk that they're willing to take on. So given that in the modern day it's quite easy for misinformation to spread, which may result in then individuals incorrectly estimating the amount of risk that they're really accepting. I'm interested to hear if he has any thoughts about that or if that plays a factor at all when he considers balancing risks and individual liberties.

[09:26] Kim Krawiec: Yeah, I think that's a good question. He's clearly not very friendly to paternalistic regulations, but I wonder whether there's ever a role for paternalistic regulations, and if so, when and what would justify them. And that, I think, goes to this question of how much information is out there and are people processing it properly. Dennis, anything else from you?

[09:49] Dennis Ting: Yeah, I think just kind of going along with that idea of regulations. In his article, he mentions lifting laws against prostitution or lifting laws against organ markets. But if that were to happen, I'm curious to know what he thinks should be done with regards to those industries. Are regulations acceptable in his line of thinking, or is that like a restriction against bodily autonomy that would invalidate even having those laws abolished in the first place? If we leave it to the market, is there that chance for corruption that's just too big for him to stomach, or is that something that he thinks will correct itself?

[10:35] Kim Krawiec: Yeah, I'm interested in that too. And a number of folks in the class also raise some questions about is there a role for regulation here? I mean, regulation is also a restriction on bodily autonomy in these cases, but maybe it's a small enough incursion, right, that we can live with it if it protects against some harm. I'm interested to hear from him. Okay, thanks, guys. Let's join the others. Welcome. Great to see you.

[11:00] Ilya Somin: Thank you very much for having me.

[11:02] Kim Krawiec: Yeah, thank you for agreeing to do it and getting us kicked off for season four. Amazingly.

[11:08] Ilya Somin: My pleasure. Earlier today, I did an interview about the Trump indictment, so this topic should be completely uncontroversial by comparison.

[11:20] Kim Krawiec: So, anyway, I'm looking forward to this conversation. Let me introduce Dennis and Joseph. They're our co-hosts for today and are going to really be taking the lead in this, and I will chime in every once in a while with my own questions, comments, whatever.

[11:34] Dennis Ting: Yeah, I'm Dennis. I'm a third-year law student here at UVA and thought your article was very interesting and definitely looking forward to talking with you about it, learning more about your thoughts.

[11:47] Joseph Camano: Yeah. And I'm Joseph. I'm also a third-year at the law school here and similarly to Dennis, we're both really excited to get to hear your thoughts on things, and thank you so much for joining us today.

[11:58] Ilya Somin: Thank you.

[11:59] Dennis Ting: Yeah, thank you so much. And again, Ilya, thank you so much for taking time out to be with us and share your thoughts. We read your article, and I think most everyone here can agree we had a very lively discussion about it last week when we were preparing to talk with you. So I guess if it's all right with you, we'll dive right in.

[12:23] Ilya Somin: Sure.

[12:24] Dennis Ting: Yeah, I think one of the big areas that we talked about when it came to your ideas was this issue of externalities. And I know you had mentioned in your article there was sort of a balancing test. I don't know if you use those words specifically, but you wrote about the idea of balancing between bodily autonomy and also the potential for a great enough harm. And the first question we had was how do you define what's considered a great enough harm? How do you calculate that? Is that an objective measurement or is that subjective? Very curious to see how you define that.

[13:08] Ilya Somin: So obviously there may not be the case we can have a very precise measurement session. In one case we see there are seven units of harm. In another case there's only six or something like that. But the kind of harms I have in mind are harms to the life, liberty, or property of others. And I think there's a presumption that's pretty strong in favor of bodily autonomy, of letting people do what they want. So that can only be overcome if the harm is A, very great, and B, it can only be prevented or significantly mitigated by restricting bodily autonomy. So to skip ahead to some of the examples that we probably will go into, if, for instance, you can mitigate by a mask mandate, which I think is a very severe restriction on bodily autonomy, but the other person can get the same effect or a better effect simply by getting themselves vaccinated, then the mask mandate is not justified. And similarly, it's not justified if we only get a modest reduction in disease risk and so on. And the same thing applies with even more force to restrictions to prevent externalities, where the imposition on bodily autonomy is even greater than with a mask mandate and where the externality is less certain and has various kinds of issues. So it is not my view that any externality of any kind can justify restrictions on bodily autonomy. It has to be a big externality and there has to be very strong evidence that the externality can only be dealt with by imposing on bodily autonomy as opposed to by other kinds of means.

[14:47] Dennis Ting: And you mentioned the mask mandates and I'm very curious you talk about the evidence showing that the effect on public safety wasn't great enough to justify that restriction on bodily autonomy. But I think when we look at something like the mask mandates, or you also wrote about the lockdowns, we have that evidence, a lot of it after the fact. When you're at the beginning of something, like imagine if we’re back in the early stages of 2020 when you don’t have the data concerning how effective masks will be or lockdowns will be, how do you make that determination?

[15:24] Ilya Somin: So that’s a good question. Here, as elsewhere, and people on the political left generally understood this in many contexts before COVID, the burden of proof is on the side that wants to restrict people's liberty, and especially if the restriction is going to be severe, like in the case of a lockdown. So if you don't have the evidence, then you can't do it, or at least you can't use coercion to do it. I readily grant that may mean in some instances you forego doing something that in retrospect, it turns out that it should have been done. But I think the long sweep of history shows that as a general rule, we actually get more utility, more health and more welfare in the long run by having a strong presumption against restrictions on liberty, particularly bodily autonomy, than we do by allowing them. So if you don't have the goods, then you can't do your mandates. Proof has to come first, not afterwards.

[16:15] Kim Krawiec: Ilya, can I just jump in here? Is there some sort of sliding scale in the sense that so some of the intrusions on bodily autonomy that we're discussing are pretty severe and some of them are pretty small, which I know you still take them seriously, and I'm not suggesting we shouldn't, but this is going to come up in later questions—wearing a mask is a smaller invasion for most people than some of the other things that we're talking about. Does the level of certainty that policymakers need to have vary based on how severe the incursion on bodily autonomy is, so that for something like a mask mandate, we might be satisfied with less certainty than we would be when it comes to more severe restrictions, especially on bodily autonomy?

[17:01] Ilya Somin: So I certainly agree smaller intrusions may require less certainty than big ones. I do think there is a separate debate here about whether mask mandates are a small intrusion, and I do not agree that they are small. I think they're a big one, at least if you have to wear the mask for many hours a day, for many weeks, months, years on end, wearing a mask once for ten minutes on the other hand, that is generally a small intrusion. I think also there can be some difficult situations where how to deal with divergent perceptions, so something that's a small intrusion for most people can be a big one for a minority, and there are some difficulties arising with that. For that reason, I think there should be a significant presumption even against small intrusions. But the bigger the intrusion, the bigger the presumption. And I think even a small intrusion probably requires at least something like a preponderance of evidence, whereas a big one requires more than that.

[18:00] Joseph Camano: Yeah, thank you so much for that. If we could, I'd like your opinion on what types of harms might be considered great enough. I know you had just mentioned earlier that any sort of harm that is big enough that might affect one's life, liberty or property might warrant a restriction on liberty. But for example, could those harms include harms in which a third party's bodily autonomy is infringed upon or does it also include, like, when there's just a purely economic harm? What exactly is the metric where we cut it off?

[18:34] Ilya Somin: Yeah, so I guess a lot depends on what is meant by the third party's bodily autonomy being infringed upon. If their body is harmed or they end up being locked up somehow or whatnot, then I think that would count, albeit I think it's rarely, if ever, can bodily restrictions on some people prevent that other than in cases where the bodily restriction, the bodily thing you're prevented from doing is preventing an action from actually attacking another person. I think a purely economic harm, again, this goes to a broader issue that if the purely economic harm is simply like your business doesn't do as well as before, but none of your property rights or bodily autonomy rights or liberty rights are undermined, then I think there's no problem with that and you should not be restricted. Like, for instance, if your business outcompetes mine and I suffer a harm, or as has come up in actual takings cases, traditional taxi companies sue the government and say the government has taken their property because the government lets Uber operate, and then Uber cuts into the profits of traditional companies, I think both legally and morally, the traditional taxi company has no case there. They just have to suck it up because none of their rights have been violated. It just so happens consumers like Uber better than the traditional taxicab. On the other hand, if somehow Uber had damaged the taxicabs of the traditional company or it had prevented them from operating or something like that, then that would be a different situation.

[20:14] Joseph Camano: Got it. Thanks so much. I think, Darius, if you'd like to go next, we might move over into how to apply this balancing test a little bit more.

[20:24] Darius Adel: Yeah, of course. Hello, Ilya. You spoke about the concept of divergent perception. My question relates to, I guess, divergent circumstances. You talked a little bit about the invasion of some of these bodily rights and how mask mandates might be a little bit bigger than, say, a vaccination. But what about if there's differences in how someone reacts to vaccinations? Like if you have a higher immune response to it, it might be a little bit more dangerous to you personally than others. How do you apply that to the balancing test?

[21:06] Ilya Somin: I saw that in the comments, and it's a reasonable point. And I can't remember whether I've said this elsewhere in previous writings at vaccination mandates, but the point that a vaccination mandate is a small imposition, while it applies to most people, there's clearly a subset of people who have very negative medical reactions or the like where that's not true. And in fact, most vaccine mandate rules, to their credit, exempt people like that, so you can get a medical exemption to a vaccine mandate here as is elsewhere. It's not easy to figure out, well, where exactly is precisely the right line, but the fact that we can't figure out where exactly the line, it doesn't mean there won't be many cases where it's easy to tell which side of the line you're on. So something like the injection site will hurt for a few hours slightly, that’s clearly on one side, whereas you will get seriously ill if you take this vaccine, that's on the other side. And similarly, if the vaccine just won't work for you, and it’s true that for some people it doesn’t work because of their immune systems, then there too, I think there's a reasonable case for an exemption even if the vaccine mandate would otherwise be justified. And by the way, it's not my view that all vaccine mandates in all possible situations are justified. It can be justified in some cases, but even in a case where it's otherwise justified, it's reasonable to have exemptions for people who are at high risk of severe medical effect or people where the vaccine just doesn't work for them and where it doesn't protect them. But it also, for that very same reason, probably wouldn't protect any third party either to get those people vaccinated want.

[22:47] Dennis Ting: I want to now kind of shift a little bit to the subtle or subjective externalities. I know we had several classmates who had questions about these issues, these externalities that are a little bit more difficult to measure, that might seem minor in isolation, but ultimately can add up to a meaningful intrusion. And so I think we'll start with Kate, who had a question about this.

[23:09] Ilya Somin: Hey, how are you?

[23:10] Kate Granruth: Hi Ilya. It's nice to meet you. Thank you for joining us. So to sort of start this off, while I was reading the article, what stuck out to me is that it sort of seems that the choices that one individual makes for their body would impact the choices that others around them have for their body. So like for example, if places allow for open drug use and needles end up discarded on the street, the non-drug users could face increased risk of stepping on a needle, violating their choice to not use drugs, or restricting literal physical movement as they sort of avoid these things happening around them. So based on that sort of expansion of the “My Body, My Choice” framework, it seems to require that people experience some level of discomfort. So I'm wondering if you agree that sort of any exercise of someone's bodily autonomy sort of necessitates infringing on another's bodily autonomy even through these sort of smaller, subtler externalities.

[24:03] Ilya Somin: So I certainly do not agree that any exercise of anyone's bodily autonomy necessarily creates externalities of the kind that we are justified in giving any kind of serious moral consideration to. What I thought you were going to say is something like you or I, we use our body in some particular way and somebody else might say, well, I find that immoral, I find that even painful to think about, and that's seen as a kind of sort of mental action or whatever, and I think there are good reasons that John Stuart Mill and others have outlined as to why it's not justifiable to use coercion to try to prevent those. The kinds of things you're talking about, I think a lot depends on what kind of property we're talking about. So if I allow drug needle use on my property or whatnot, then it's true somebody who's afraid of stepping on the needle or whatnot or just doesn't like that kind of activity would be less likely to come to my property, but in my view, they don't have a right to come to my property necessarily to begin with, and therefore, while they might be worse off in some utilitarian sense possibly, they do not have any kind of autonom—based complaint. When we’re talking about public spaces, things are more complicated, and you could have a whole discussion of this. Actually with a co-author, I'm working on a paper on arguments to claim that public property considerations justify restricting immigration and we're going to push back on that and say, no they don't, at least not in the vast majority of cases. So a discussion of public property could be a whole separate thing and maybe, Kim, you want to do a whole separate thing on the regulation of public property and how that should work. So I can't do that justice in like the 30 sceonds to a minute that I'm about to devote to it, but I would basically say is that a lot depends on what is the justification for having this thing be public property in the first place. And if the justification is to provide some sort of public good or product that the private sector cannot provide, then what we forbid or restrict in the public property area should only be that behavior which would prevent the public good from being provided. So for instance, if you believe that public roads are a necessary public good, then for instance, we have to restrict people from jumping out in the middle of the street and causing car accidents because that would inhibit the transportation. On the other hand, that would not give us the right to, say, restrict offensive or possibly offensive bumper stickers that people might put on their cars even though some people might really hate those stickers and feel a kind of subjective psychological discomfort upon seeing them. And I think when you look at the kinds of things that are discussed with respect to San Francisco and public drug use or whatever, I think the question arises, like does this inhibit or prevent the thing which justifies this being public property in the first place? And I can’t go through every possible scenario, but I think that’s the kind of inquiry which we would want to make and in some cases, particularly if you're a pro marketer or a libertarian person like me, a proper question to ask is like, should this be public property at all and maybe it should just be privatized? And then you come out with a result where you have some businesses, perhaps, or some other facilities where certain kinds of drug use, or maybe even any kind of drug use is completely forbidden. Others, it's allowed, but people are thrown out if they don't pick up their needles or if they drop them on the floor or whatever. And you can imagine other permutations. And I accept the fact that there are many private establishments that have practices that I don't want to be a part of. I don't want to go there. But there are others which cater to people with more preferences, more like mine. And in a diverse society with competition and competitive markets, we should have that. There might be special cases that apply. What if something is what economists call a natural monopoly? So we might want to—if something really is a natural monopoly, that is, the monopoly is unavoidable, and the product they sell is something that's like essential to life or basic participation in society, then we might say something like that, for instance, I think a baker, for instance, should be able to say, I only sell wedding cakes to opposite-sex couples and not same-sex couples, even though I myself, I think that's a stupid kind of prejudice and unjustified. On the other hand, if the power company says we only provide power to homes where opposite-sex couples live but not same-sex couples, and they're the monopoly supplier of electricity for the area, I think that's a different situation.

[28:55] Kim Krawiec: Ilya, I want to come back to ask you a little bit more about these sort of subjective or dignitary types of externalities. We have a couple of more questions from the students along those same lines, so I'm going to let them go first, and then if we still haven't gotten to the part I want to ask, then I'll ask it.

[29:14] Ilya Somin: Sure, sure.

[29:15] Joseph Camano: Sure. So in that vein, Liam, if you'd like to go next.

[29:19] Liam Bourque: Okay, great. So I had a two-part question, but what I thought was going to be second seems like it'll fit in a little more nicely with what we just talked about. So when it comes to what you want, you essentially want a very, very hyper-free market system with a lot of personal freedom. Now, if we're assuming that that ideal that you strive for is not possible, say you cannot see a full legalization of drugs, you cannot see whatever these policies are, et cetera, are you okay with a much more targeted approach to try to hit the externalities? For example, you do not directly criminalize drug use, but drug use in front of children, public use, other areas where externalities are concentrated are essentially targeted and targeted harshly, while everything else is kind of more laissez fair. Would you be okay with that as a compromise in your system?

[30:10] Ilya Somin: A lot depends on what the details of the compromise are and also on what's politically feasible at the time. It could be that the aggregate consequence of lots of target interventions may be worse and more restrictive than just that of a single broad intervention. A lot depends on exactly the details of the policies. But sure, in almost all of these areas, if we can't have the fully ideal policy, I am happy to accept incremental movement towards the ideal. There are rare situations where some issues might be an all or nothing kind of issue, where either you fully legalize something or you have to fully ban it because in the intermediate state there's some kind of terrible thing that will happen. Some economists posit that in the case of certain kinds of electricity deregulation and the like, but I think there are few, if any, circumstances like that in the area of bodily autonomy.

[31:09] Liam Bourque: So the other question I had was when I read through your piece, I felt that in many ways you kind of glaze by a lot of the negative externalities of policies you don’t really care about. For example, let’s talk about legalization of prostitution. I’ve been to a number of countries where either it’s just kind of ignored or it is legalized. For comparing developed countries, in a lot of East Asia, in major city hubs, it’s kind of just ignored South Korea, Seoul, Hong Kong, Singapore, and you just see a lot of women from’Southeast Asia being taken in, and looking into research on this, or Europe, in Amsterdam and Germany, you see a lot of women being brought in from Eastern Europe, and it's honestly a tragedy. And the point is that even though legalization might shine some light on it, you do see increases in human trafficking. I feel that in many cases, when you do not care as much about the sanctioned activity, you're just kind of glazing by what the externalities are when it comes to that currently sanctioned behavior.

[32:08] Ilya Somin: So basic Econ 101 says that there is more deceptive and involuntary trafficking in an illegal market than a legal one, because when there's a legal one, there's strong incentives to just deal with willing people and the like. If the definition of trafficking that you're using is not one where there's coercion, but rather one where simply like poor people come in from a poor country to do it, then my answer to that is you have to ask yourself what will be the situation of those people if they're not allowed to enter the prostitution market? And in most cases, the answer is that their other options are likely to be worse. That's why they decide to enter the prostitution industry to begin with. So what you're looking at in those instances is the negative consequences of poverty and of governments and political systems, where an economic system, because of their structure, many people have few or no opportunities, and that's the place where I think you should look for solutions to that situation rather than by making these people's lives even more miserable by cutting off what at this particular point in time is their best opportunity. Trafficking is one of those, not that you're using it this way, but necessarily but it's one of those weasily concepts where people use the word in a loose way without distinguishing between something which is obviously bad, coerced prostitution, and something which the word trafficking grammatically can still apply to it, but it’s a different situation, which is merely just international movement of people for the purpose of entering the prostitution industry, which could be voluntary and which may well be a better option for many of those people than the other options that are realistically available to them.

[33:59] Dennis Ting: I think this is a good time to segue to our next question. Gabriele, you had a question about more focused on kind of similarly the corruption aspect of things. Would you like to take it away?

[34:14] Gabriele Josephs: Sure. So I remember reading an essay by Joel Feinberg, “Harmless Immoralities and Offensive Nuisances.” And one example he has is that there's this bus, and in the bus, you get on and there's somebody having sex in one corner and somebody playing loud music in the other corner and somebody doing drugs in the other corner. And there are all sorts of these theoretically harmless immoralities and offensive nuisances that he's sort of at pains not to focus on the externalities. He's just focusing on the corruptive sort of sanitary harms that come as a result of being in proximity to these things.

[34:56] Ilya Somin: Right.

[34:57] Gabriele Josephs: And so I want to ask whether or not your position is that given that anytime you restrict people from doing things in certain places, we should not even countenance time place manner restrictions on these sorts of activities where people carry on certain activities that maybe you find undignified or unsanitary with their bodies, such that even the sort of extra transaction cost not banning it, but anytime you raise the transaction costs imposed on the people who engage in the behavior, right? So in one example you had earlier, you're imposing extra transaction costs, particularly search costs on the gay couple who has to go to multiple different bakers in order to find one who will do the cake for their same-sex wedding. In the other instance, you're imposing extra search costs, I guess, on the person who wants to have sex in public or the person who wants to do drugs in public or so on and other, you're imposing these extra transaction costs. That happens anytime we have a time, place and manner restriction. And so I'm wondering, is your position that we should never actually take seriously any government intrusion, that's sort of time place, manner, when you're dealing with these instances where we're applying the “My Body, My Choice” framework, even if the transaction cost is just not allowed.

[36:33] Ilya Somin: I wonder if I could ask you a clarifying question, because I feel like I could interpret your question in one of two ways and I'm not sure which one is the one you mean. One possibility is that you mean that these kinds of transaction costs when imposed on customers who want to avoid like the people having sex on the bus or the gay couple who wants to avoid being turned away by a baker who doesn't serve same-sex weddings and so forth. One possibility is you're asking whether—is you're asking whether such transaction costs can justify regulation to prevent that problem? Or it's possible that you're asking me the question the other way, which is that maybe government should never be able to regulate to reduce transaction costs or that the government regulations are unjustified if they impose transaction costs on people because obviously the person who does want the bus where sex is allowed or whatever that they face a higher transaction cost if it's generally banned. So I'm not entirely sure which of those you mean. Or maybe you mean something different but if you could clarify it can maybe answer your question better.

[37:58] Gabriele Josephs: Sure. So I do mean the person who wants to have sex on the bus they face higher transaction costs when the government regulates, sort of applies time place, manner restrictions to…

[38:13] Ilya Somin: I see what you mean. You're asking it from sort of the deregulatory direction rather than the pro-regulatory direction, or the other argument also is potentially a reasonable one to raise. And I guess my answer to that goes back to the previous answer that I gave about public property, which is that if there’s an area that, let's assume there's for some justifiable reason it's public property, then I think it may be reasonable to impose transaction costs on people who otherwise would want to engage in the activity on public property, but that activity makes it difficult or impossible to use the public property for the purpose for which we have public property in the first place, like transportation on roads, for example is an obvious case, but there are other cases as well, and whether a particular activity that we ban really does impede the use of the public property and we can argue about. But in cases where it does, and the effect is at least somewhat large, then I think government would be justified in restricting those activities for the kinds of reasons, for instance, that are justified in preventing a person from running across the street when there's a red light, because if you don't have sort of some kind of rules of traffic, then the street cannot be used for the purpose which justified making it a public property in the first place. For a lot of these things where it isn't public property, then as you can probably guess, my approach would be that the owners of different buses the owners of different buildings and so forth can make rules whether drug use, sex, other activities and so forth are permitted. And I think for a lot of these things, it may well turn out that most potential customers of that business or most potential patrons of that civil society, organization, if it's a nonprofit, they don't want to see open sexual activity or whatever the thing may be. And so it may be that only a minority of buses or a minority of buildings would have it. But I don't mind. Maybe this is prudish of me, but I personally don't really want to see the bus for like, there's open sexual activity going on. But I'm fine if there is like a free sex bus or a free love bus out there, so long as there are other competitive alternatives where I don't have to go on that bus if I don't want to. And the same thing with a lot of these other kinds of situations as well.

[40:53] Kim Krawiec: So Ilya, I just want to follow up on Gabriele's hypothetical. As you may or may not know, I am not sympathetic to these claims of subjective externalities and harms either. But I do find the line drawing difficult often. And so I want to go back to that. If I understand you correctly, what justifies the no sex on a public bus restriction is that it's a public place. Am I reading that right?

[41:24] Ilya Somin: It depends on what you mean by a public place. If it's a government-owned bus, then I would ask the question, why should it be a government-owned bus? And my answer is probably that the buses should just be privatized. But if there is some compelling reason for it to be a government-owned bus, then I would want to know sort of what the reason is. And the government would be justified in imposing restrictions on activities that go on in that bus that prevent the carrying out of whatever is the function that makes it justified to make the bus be publicly-owned in the first place. And it could turn out, in theory at least, that…

[42:12] Kim Krawiec: But here, presumably the reason is to get people from point A to point B in a manner that's not profitable to do so privately, right? And these people can still get there, but they just don't want to because they're subjected to all this sex on the bus.

[42:29] Ilya Somin: Yeah. So I guess maybe this is fighting the hypothetical a little bit, but I would say that if the getting there is the problem, it seems to me that privately-owned buses should be fine for that. If for some reason the cost is too much, you can just subsidize people's purchase of bus tickets and you could still let bus companies compete with each other, where some would be the free love bus and some would not be. But if that's fighting the hypothetical...

[43:00] Kim Krawiec: Yes, I'm taking that away from you. There's not going to be a private bus, only public.

[43:02] Ilya Somin: But then you're getting into this realm where there may indeed be some difficult line drawing, but fortunately, rarely if ever will we actually need to deal with that realm in response to real world situations. So my actual answer is just privatization is the solution to most of these kinds of problems the overwhelming majority of the time.

[43:22] Kim Krawiec: Well, in your world we don't, right? But in the real world of politics that we actually inhabit, we are drawing those lines all the time. And that's kind of why I'm asking you this, right? Because I want to get your response to so in that example, if the point is to get from A to B and people can still get from A to B, then this is a specific type of claimed externality, right? Which is just that you've made this so unpleasant to me by having to watch your behavior and be subjected to it that I don't want to participate. And that's just a smaller version of an argument that people make with regard to a whole lot of things, right? I don't want to watch two men get married because it undermines the meaning of marriage for people like me and for our society. I don't want there to be legalized prostitution or commercial surrogacy because I believe it reinforces negative gender stereotypes about women's roles or I don't want to live in a world where we buy people's blood or kidneys because that suggests that we live in an uncaring atomistic commercial society. And I don't want any part of that. And I'm assuming you disagree that any of those that I just mentioned would be valid justifications rising to the level I assume, but you can correct me if I'm wrong and I'm just trying to figure out whether how we figure out what types of externalities are going to count. Do we require some measurement? Because there's probably all kinds of externalities, including ones that we would accept as being real, that are difficult to measure, right? Maybe particular environmental harms or I don't know. But these are ones that a lot of people put forward and that have a lot of political resonance and like you, I'm not sympathetic to them. But why that externality doesn't count other than you can't measure it, which seems unsatisfying.

[45:27] Ilya Somin: Yeah. So that is not my at least it's not my principal objection to this. But I would note that in moving from the Bus example to these other cases, we've moved from a situation where it's I don't want to personally be present when X activity is going on to I don't want it to go on anywhere, to people who object to organ markets or to people who object to gay marriage. In most cases, at least in the example that you posited, it's not just that they don't want to be personally present when the organ is transplanted and sold, or that they don't want to be personally present at the gay marriage, or whatnot they want it to be banned entirely.

[46:05] Kim Krawiec: As I said, I'm not sympathetic to their arguments but in their defense, they would in fact say yes, it is affecting me. Who the state allows to marry affects me living in a world in which we purchase kidneys and organs and babies and whatever affects me and the way in which people interact with me and in particular, people who believe they are part of a subgroup that's negatively affected. So, for example, many people make the argument that women are negatively affected by things like commercial surrogacy or legalized sex work not because they're participants to the transaction or being forced to physically watch the transaction but because it reinforces particular harmful stereotypes about women that affect everybody in society.

[47:02] Ilya Somin: So for the first kind of situation of the sort of like I don't want to be personally present my solution in most cases is privatization. And it's precisely because that it's very difficult to set up rules for these kinds of things that will satisfy everybody or even an overwhelming majority of people that it's valuable to have a society based on private property and competitive markets and autonomy and the like. And in my role as property professor this is sort of what I advocate. The rules in my business or in my house or in my club or in my educational institution can be different from those in yours because people have different preferences about what they want to be personally involved and associated with. If the argument in shifting to this other category of cases where the issue is not I don’t want to be personally involved in this, but I don’t want it to exist anywhere because it sends the wrong message to society. I think that if it exists or because I personally feel bad at the very thought that it’s happening there, I have multiple responses. I won’t go through all of them. But in almost all of these cases part of my response is going to be that the argument itself is logically wrong. So I would say there’s actually nothing wrong with selling kidneys on a market. There’s nothing wrong with any of the moral messages that might be sent to society by having men being able to marry other men or women marry other women and so on. So I will have responses like that that the premise of the concern is itself wrong and should be rejected for that reason.

[48:47] Kim Krawiec: Okay, but now we’re just back to subjective disagreement.

[48:50] Ilya Somin: On top of that, I would also have institutional arguments that if you give government the power to restrict people’s activities on this basis, even if you think there’s, like, a correct morality about this sort of thing, like if you’re Adrian Vermeule or whatever. And you believe that we can in theory have a government which governs wisely and justly on this kind of stuff? Real world government is likely to not be that way. And even if Vermeule perhaps trusts people who think like he does to set these rules correctly. Government power will often be in the possession of people who are not white, who have different views, and therefore there is the test of if you're going to give government a particular type of power, do you trust the people on the other side of the political spectrum from you to wield that power in a just way? And if the answer is no, I don't trust them, then that's an additional consideration for rejecting that. And I think this concern is particularly salient when you're talking about arguments that can, in principle, justify restricting almost any aspect of human activity of any kind.

[49:58] Joseph Camano: Thank you. I think that's a perfect segue into the next portion of our discussion actually. So, many of our discussion questions focused on the idea of law working in a paternalistic way, specifically regarding when regulation may be an appropriate solution through the law. So, Dennis, if you'd like to kick us off, that'd be great.

[50:16] Dennis Ting: Yeah. You had actually just mentioned that there's nothing wrong with selling kidneys on the market. And I always think things like an illegal organ market or legalized prostitution is very interesting. And I'm curious to hear your thoughts on whether or not, if we abolish these laws prohibiting prostitution or organ markets, should there be laws regulating it, or is this something that should be left up to the market to decide what behavior is appropriate? Or is there that chance of corruption that may be too great for there to not be any regulations?

[50:54] Ilya Somin: So a lot depends on what you define as regulation. I certainly think in these areas, like, really in any areas, there should be restrictions on coercion and fraud. So if I say I'm going to pay you $10,000 for the kidney, but in reality I only pay $1,000, that's fraud or breach of contract, whatever I want to call it. If I force you to give me your kidney, that's no different than if I force you to labor to do some other kind of work for me on threat of killing you or hurting you or something like that. My position, at least in the vast majority's instance, is that if you forbid force and fraud, and I recognize that there could be you guys are law students, or we can come up to an instance where it's hard to tell whether force or fraud has really occurred or not. But I think by and large that is enough. But you can take a more moderate position than me and say, well, maybe some of these markets, the risks are so great or people or information asymmetries are so great, that we want to have more regulation in that and we can talk about exactly what kinds of regulations those should be. But I think a market where you have the kind of level of regulation of kidney sales that we have for other medical transactions, while that would still be more regulation than I would you what I think is justified. It would be a vast, huge improvement over where we are now. And the same for prostitution and for the war on drugs and so forth, that if you get a reform where it's like 70 or 80% liberalized, I'd say that would be amazing and wonderful compared to where we are now, even though I would not be completely satisfied. Among other things, in the case of organ markets, we would save tens of thousands of lives every year. In the case of prostitution markets, we would save every year thousands of people from going to prison. We would eliminate all sorts of opportunities for organized crime. And in the case of War on Drugs, we would not have the situation where in the United States alone, we have hundreds of thousands of people in prison for selling and distributing substances that the government says they don't want you to take, even though in some cases they’re not actually more dangerous than the substances that they do allow you to take or activities that they allow you to engage in, like having a bad diet and becoming very obese, for example, which can be as much or more risky than the usage of many types of illegal drugs.

[53:30] Dennis Ting: Yeah, and I think you mentioned the issue of information asymmetry and I think that’s a great segue for Joseph’s question.

[53:37] Joseph Camano: Yeah. So one of the things that stuck out to me in your article was you really seem to value an individual’s ability to choose their own adventure in a way in which they can estimate the amount of risk that they’re personally willing to take on when they engage in certain activities. So I’d love to hear a little bit on your thoughts of how pervasive and how the ease of misinformation, the way in which that can spread in the modern day, how that may factor in, if at all, to your idea of allowing people to estimate the amount of risk that they take on. I can think of different examples in which maybe misinformation is spread. An individual then takes an action that they otherwise would not have had they been correctly informed on all of the potential risks.

[54:22] Ilya Somin: Unlike one or two of the things we talked about before. This is something that actually is the subject of some of my work. And I have a book called Democracy and Political Ignorance, which, as the title implies, is all about, yes, knowledge and ignorance. So if your standard is people need to have perfect information about relative risks, then you can forbid or at least severely restrict almost all activities. Like many of you probably drove in a car or a bus or some other vehicle today. And I bet few, if any, of you perfectly know the exact risk of the exact likelihood that I don't want to scare anybody, but the exact likelihood that you will be killed or seriously injured on your way home from the law school today, if that's where you are now. Or every year. There's about 50 or 100 Americans who die in bathtub accidents. I bet those of you who use bathtubs, which may well be almost all of you, you don't know what's the exact risk that you will crack your skull. And therefore maybe you could say you cannot be said to have made an informed decision about whether you should wear a helmet when you bathe or maybe forego bathing entirely because what might crack your skull or seriously injure yourself. So if you judge it's kind of a standard perfect information everything will fall short. But to my mind I think there are other better standards. One is you should compare real world voluntary private sector decisions to regulatory decisions. And when you look at regulatory decisions first you look at the problem of voter ignorance which is way worse than consumer ignorance. This is the subject of my book in that when you vote at the ballot box in most cases there's only one chance in many millions that your vote will be decisive and that leads to what economists call rational ignorance. If your only incentive to be a good well informed voter is that you make a better decision that is not much of an incentive at all because the chance that your decision will make a difference is very small. In contrast, when you decide whether to take drugs, whether to become a prostitute or patronize one, whether to sell a kidney and so forth, you have much better incentives, albeit perhaps not perfect incentive to become well informed. So on average misinformation is much worse in political markets than it is in private sector voluntary decision making. Now you might say maybe the government policy should be determined not by the voters but by regulators who are insulated from political pressure. Former Supreme Court Justice Stephen Breyer has a book where he advocates this. Cass Sunstein has argued for this kind of approach as well where they say yeah we agree voters are really ignorant. They don't know much about relative risk and so forth. But that's why I want to leave it to the experts like the CDC or the Dr. Fauci, whoever you think is a good expert. If you don't like Fauci there too there too are other kinds of ignorance that come into place and that an experts at the CDC or whatnot they might have a very good understanding of the scientific disease risk or injury risk that you face but they don't know what's the benefit on the other side. Like how much do I actually value the use of a particular drug? Or I was going to say the patronizing of a prostitute. But maybe that's not the best possible example. And so some people differ enormously in how much they value those experiences. I personally, even though I'm Russian frankly I don't particularly like drinking alcohol. I can go a month without having a drink and I never miss it. On the other hand, there are obviously people who value drinking alcohol much more than I do. And even though there are risk to it, for many of them, if you just say you're forbidden to drink during prohibition or you're only allowed to drink a small little bit, they will suffer a vast net loss of utility. Even though they're saved from the risk of getting drunk or liver damage from drinking alcohol and things of that sort. So on balance, I think information problems overall are much lower when people are allowed to make voluntary private transactions than either those where ignorant voters get to influence policy or even those where you have seemingly expert government officials do so. Especially when you remember that the expert government officials often they're responding to interest group pressure and often, at least in a democratic society the ignorant voters will be able to influence what they do. You could say, let's just have an authoritarian society with the rule of experts but that has obvious problems of its own. There have been arguments during COVID before maybe the Chinese Communist Party has achieved some kind of effective rule of experts. I think if you look at what's going on in China now and frankly, even before, it's very obvious that whatever rule of experts they have now is not actually that great for the vast majority of the people and it's not a good model to imitate. And that is even aside from considerations about the intrinsic value of liberty, which I think also is significant. But I do recognize that it is not my view that the intrinsic value is so great that it can outweigh all possible negative utilitarian consequences. So I think there may be difficult issues where there's painful trade offs between liberty and utility. But in the vast majority of cases more liberty also means more utility and happiness at least compared to realistically feasible alternatives. And the area of information problems is actually a very compelling example of how misinformation is much, much worse when we engage in political decision making than when we engage in private sector transactions. In addition to my work, I recommend the work of Dan Kahan at Yale Law School who, by the way, unlike me, he's not at all libertarian. But he nonetheless has done he, with colleagues, has done great experiments where they show that people do a much worse job of processing political information than of processing very similar information about private sector transactions. He actually has great controlled lab experiments where he shows this.

[01:00:29] Joseph Camano: Thank you.

[01:00:29] Kim Krawiec: Following up on Joseph's question about Misinformation in a setting where let's just assume, for the sake of argument, that we know that there's a high probability that people may be operating either under Misinformation or find it difficult to make cost benefit trade offs properly for whatever reason. Either because it's a complex environment, it's because the risks are. Unfamiliar, whatever it is. Would you support then regulation to correct it? It could be something very simple and non invasive along the lines of just educating people, right, but it could be something more severe waiting periods, I don't know, something more further along on the paternalism scale. How do you approach those types of infringements on individual decision making?

[01:01:25] Ilya Somin: Yeah, I would say much the same way as in my previous answers. First, I would have a strong presumption against regulation. Second, we should not engage in what economists call the benevolent desperate fallacy that we look at a market and we say, well, there are flaws in the market. So then once we conclude there are flaws and we should have government correct it. But that conclusion follows only if we implicitly assume the government is a benevolent despot, that the government is well informed and that it's working assiduously to correct the externalities while also carefully avoiding going further than is necessary to correct the market failure, which may be an externality, but could be some other kind of market failure. Once we look at real world government influenced by ignorant voters, by regulators who often don't have the knowledge of the utility trade offs and the like, then I would be very worried of doing these sorts of things. Because even if there are problems in the market side, there's a lot of compelling reason to think government is likely to be worse. If you could prove to me in a particular case a there's strong evidence that this is an exception and b the exception won't turn into a slippery slope, then I might be more open to it and of course I might be more open to smaller intrusions compared to bigger ones like warning requirements and the like. I have a piece called A Warning against Government Warnings where I point out know, and by the way, Cass Sunstein has written some good stuff on this as well, where I actually agree with him, there's a couple problems. One is the actual history of government warnings is not a very impressive one. Like there's a history of warnings against gay and lesbian sex, of warnings against masturbation and many other kinds of things which the government even back then had no actually good reason to think was harmful, but they swapped warnings nonetheless. Secondly, as Sunstein and others have shown, when you have warnings on all sorts of things all the time, like we do now, then that in itself taxes people's cognitive abilities and leads them to tend to ignore it, the warning. So many of us, I know I do, we take medicines and we use various products, they have warnings on them. I bet the vast majority of us do not actually read those warnings because we know from experience that many of those warnings are likely to be annoying and have little value to us. And Sunstein actually has an excellent book that he put out a couple of years ago, which goes through this in more detail. Before I go too deeply into the warnings thing, I would at the very least want a regulatory structure where there's a strong presumption such that they can only slap warnings on things if the case is really compelling. And that, among other things, would prevent this oversaturation of warnings, which is what we have now, where we end up just ignoring them. And we end up with a situation where most of us don't even read. Most of. The warnings that the government gives us because there are just way too many of them. And we rationally assume that most of them are actually irrelevant to our situations.

[01:04:43] Joseph Camano: Great. So next up we have a question regarding your views on the interplay of exploitation and that risk. So, Jenna, if you’d like to go next.

[01:04:54] Jenna Smith: Hi, so first I want to echo some of my classmates and just thanking you for being here with us today. And as we discuss these kind of paternalistic concerns, I want to swing back to organ markets. In your article, you make a really interesting point about the legalization of organ markets acting to increase the bodily autonomy of those selling organs. But markets, by their nature, do have two sides, both the purchaser and the seller. So on the purchaser seller in a market, the people who are going to be able to afford to buy an organ are going to be the people with more money and more resources. So you can argue that in an organ market that would mean that potential donees without the funds to be able to participate in the market would not be able to have access to an organ that they need. So does this expansion of choice for donees come at the expense of the choices of vulnerable people in need of an organ without the resources to participate in the market? And if so, should there be some kind of legal protection to prevent them from having their bodily choices limited by being priced out of the market?

[01:06:00] Ilya Somin: Yeah. So I would like to say here that vulnerable people actually be vastly better off if there are organ markets than in the status quo. Because in the status quo, tens of thousands of people die every year because we have a shortage of kidneys and some other organs as well. But kidneys are a particularly most significant example. If we legalize the market, then we can save almost every one of those lives. And obviously, you should not envision this as the kind of market where each individual seller goes to a store and purchases the kidney as needed. Like when I want to buy a new bottle of orange juice, I go to the supermarket and I take one off the shelf. Rather, this is likely to be the kind of market, as would other expensive medical treatment, which is done through insurance. Right. So just as if I need for instance, when I broke my ankle, I need an operation that was covered by insurance thanks to premiums that I paid for that. The same thing would be true with organ markets. And by the way, it would actually be cheaper than the status quo, where many people end up being on kidney dialysis for years at a time as they wait for organs. And being on kidney dialysis for many months is actually more expensive than the kidney would be in a kidney market. And I also don't buy these scenarios. Like the rich would buy up all the kidneys somehow, because even if you're rich, you generally don't need more than one or perhaps at most two kidneys if you have a problem with your kidneys. So there's no more reason to think the rich would buy up all the kidneys than to think that in a market where food is sold or water is sold, that the rich would buy up all the food and the water. If you still have a concern that maybe the poor wouldn't be able to afford things, the reasonable thing to do is to subsidize the consumption for the poor rather than to ban the market entirely, just as this is what we do with food and other necessities. And I don't want to get into a much more general thing about sort of how health care should be reformed. But my general view on that is that we can reduce health care costs massively by deregulating and allowing more compensation. We might then still want to have a residual program for subsidizing health care for the very poor, but for the vast majority of people, health care would be both cheaper and more available than it is now. And that's certainly the case with kidneys, where we have a massive shortage, which is a natural consequence of a market where we have a price control, where the price is essentially set at zero. It's actually a little bit higher than zero. I can go into those complications, but it's set close to zero. So if we essentially banned the market for food or banned the market for other kinds of medical treatments, we would then have massive shortages of that. And then people would say, but if you legalize the market, only the rich would be able to afford it. But obviously that objection would not be sound in those cases. And it has the same kind of weaknesses here as well.

[01:09:02] Dennis Ting: We had a number of students who had questions pushing back against the analogy to other repugnant transactions, and not necessarily because they disagree as a matter of policy, but they thought the analogy didn't quite fit in some ways. And so I'd like some of those students to voice some of those concerns and hear your responses. We'll start with Julia.

[01:09:26] Julia D’Rozario: Thanks, Dennis. Hi, Ilya. I had some difficulty with some of the aspects of the analogy between abortion and other expressions bodily autonomy like prostitution or organ sales. My impulse is that exploitation objections to prostitution and organ sales are primarily based in the fact that these activities are being commercialized. So the existence of the market is actually what makes the objection, where the act itself, like sex or giving an organ, is not actually objected to. With abortion, by contrast, objections arise in response to the act itself. So looking at the other repugnant transactions from a commercialization angle, would you say that the analogy to abortion still holds up?

[01:10:20] Ilya Somin: Yes, I do, because I think one element of bodily autonomy is the ability to use your body to make an income, which is, of course, something we do all the time. And you might say, well, with organ markets or with prostitution, there are risks to using it that way. But of course, the same thing is true, as I point out ad nauseam in some of my writings in organ markets. The same thing is true for many more conventional labor markets. Indeed, the risks of selling a kidney are actually much lower than those of, say, being a lumberjack or a professional football player or quite a number of other transactions for pay. So I think the analogy does hold. I also think that in these cases, it's kind of strange to say everybody else in the transaction is allowed to profit, but somehow the person who sold, who donated the kidney should not be allowed to profit. So if it's permissible for the doctors to profit, the nurses to profit, manufacturers of medical equipment, insurance companies and so on, why not for the person who owns the kidney? And obviously, with abortion also, most abortions are part of paid transactions where the people who perform the abortion get paid to do it. So there's a commercial element there as well. I do recognize that there could be differences between situations where you argue that the transaction is inherently wrong versus where it's only wrong, where it's done for pay. And I think the only done for pay kind of arguments are particularly weak in that I think there's a good book about this by Jason Brennan and Peter Jaworsky called Markets Without Limits. They're not actually advocating markets without limits, at least not in that book, but what they say is, almost any transaction that you should be able to do for free, you should be able to do for pay. And they cover these cases like Organ markets, prostitution and so forth. And I largely agree with their argument. In the case of abortion, as I said in that essay you guys read, I think it's actually a tougher case than some of these others, not because of the presence or absence of money, but because you have a much stronger case that the transaction inherently involves massive harm to an innocent party, the fetus. And the rebuttal to that, I think if it's a good rebuttal, has to take the form of saying either that the fetus, at least at many stages of pregnancy does not actually have the same kind of right to life as a child or an adult. Or alternatively, as in Judith Tarvis Thompson's argument that the imposition is so great that even if the fetus does have a right to life, then you still can't impose the continuation of the pregnancy. I generally speaking, I think the first category of arguments that the fetus does not have a full right to life. I think that argument is more promising than the Judith Jarvis Thompson article. Judith Jarvis Thompson is a very famous political philosopher who in brief, in a famous essay on abortion, she argued that the bodily imposition is so great that even if the alternative to this bodily imposition is that somebody else, an innocent person, dies, then we just have to accept that. And she gives analogies like what if somebody is bodily connected to me and I have to constantly carry them around or something like that and they're a constant massive weight on me and if I cut them off, if I remove them, then that person will die. But says Thompson, that's still morally acceptable, or at least it's not morally acceptable to coerce me into keeping the person literally on my back because that's just too big an imposition. And she analogized the situation of the pregnant woman to that situation. And her article is spawned to vast literature both for and against her argument.

[01:14:27] Joseph Camano: I think that's a great segue into Anu's question. So if you'd like to go ahead.

[01:14:32] Anukriti Goel: Yeah. Hi Ilya, thank you for being here. My name is Anu. I'm a three L here at UVA. So like Joseph said, I think that was a great segue into one of my first questions. So in thinking about abortion and pregnancy, I kind of fell along the same lines of what you were describing where a fetus is a life form that requires basically another person's body to exist as a host. Like without their body, their nutrients, their energy, what have you. The fetus literally cannot survive on its own. Like if it were taken out of a woman's body until a certain point, it literally would not survive. So that's why I struggled like Julia with the analogies, some of the analogies presented. Like when I think about masking, at least at the time of COVID that was something that was considered to also impact other people, whether that be from preventing the spread of infection or helping immunocompromised and just generally saving lives. And I would argue that that's definitely not as much of a burden on an individual to simply slip on a mask than to literally carry a fetus the term. And I just kind of wanted to hear your thoughts on that and that analogy.

[01:15:58] Ilya Somin: I think there's maybe two or three different issues there. One is sort of magnitude of burdens. I recognize that the magnitude does differ between different cases with the masking. I think how much of a burden is depends on how much you have to do it. If you have to do it pretty much all the time you go out for weeks, months, years on end. I think it's a severe interference both with autonomy and with normal human interaction in terms of your ability to communicate with people. Actually didn't have strong views on this until COVID, but I developed them during COVID in my view. And if it was just me as an individual, then it would be unimportant. But I think many millions of people actually experience the masking as a very severe burden. And it's not just an ideological or moral thing where if you have correct ideological views it wouldn't be experienced as a burden as in the case of the person who doesn't like that same sex marriages are going on somewhere. It is a real sort of directly physical burden, albeit unless it lasts for many months, for years. I agree it's not as great as a forced continuation of a pregnancy. But the other issue that is raised is that there's a distinction between the person who by their very nature depends on you to survive versus other situations. If anything, if the person cannot survive without your assistance, that strikes me as actually other things equal and other things may not be equal, but other things equal. That strikes me as a more compelling reason to coerce you than if things are merely probabilistic or if they have alternative ways of protecting themselves such as one way masking, avoiding the place where you're going about unmasked or after vaccination vaccination, it seems like a much more compelling way and so on. And this also actually gets to another aspect of abortion which makes it hard, which to repeat, as I said in that essay, I am generally pro-choice. But one of the things that makes it hard, that issue harder than some of the others, is that with the important exception of rape and I don't want to for a moment forget that but with the important exception of rape, when a pregnancy occurs, it occurs through the sort of the voluntary risk taking activity, usually of having unprotected sex. I don't want to shock this young and impressionable audience, but that tends to be how pregnancies arise. And so again, rape excepted. The pregnant woman has much more agency in creating the vulnerability of the fetus than in many of these other situations that we're talking about where the vulnerability is created by the existence of a disease or by hard to change social conditions or something else. And as a general rule, and even I, as a libertarian can see this if you created the dangerous situation then the case for coercing you to try to address that situation is actually stronger than if you're not responsible in any way for creating it. And this is also, I think, my reservation about Judith Jarvis Thompson's famous example that the example she gives, like with the person that's attached to my body or something. That is a situation I had no role in creating, whereas with unprotected sex, or even perhaps in a situation where sex is protected, but people did a bad job of using the protection and so forth. This situation is tougher. I would ultimately still resolve this in most cases in a pro-choice direction, simply because I think the fetus is not developed enough, at least until very late in the pregnancy, that it has a moral status similar to a baby or the like. But I think because of the agency of the pregnant woman in creating the risk, this is actually a tougher situation for bodily autonomy arguments than many of the other ones that we are talking about.

[01:20:09] Joseph Camano: Thank you. We had one more question pushing back against the analogy. So, Mary Beth, if you'd like to go ahead.

[01:20:15] Mary Beth Bloomer: Yeah, Hi Ilya.

[01:20:15] Ilya Somin: Hi.

[01:20:16] Mary Beth Bloomer: In one part of your article you talk about how abortion or allowing abortion can be thought about as kind of a limit on a risk on financial hardships that someone can undergo. And in kind of the same way that, for example, becoming a professional football player or selling an organ, those also have risks. But I guess my issue with that is that so much like deciding to get an abortion isn't one of just deciding to forego economic harms that could occur. Should you go through with the pregnancy and I just think the calculus between getting an abortion or in a world where we could sell our organs or someone who's trying to become a professional football player, I just kind of struggle with that. So I was curious to hear your response if you could maybe expand.

[01:21:10] Ilya Somin: It is not my claim that all abortions are a result of economic calculations. It is merely that some significant number are, and I don't think that's controversial among those who study this issue, that there are various motivations women get abortion. Some of them are medical in nature, some of them are about lifestyle issues and the like. But some of them clearly are that the woman concludes, and there’s a lot of data supporting this, that she is just, not because she's relatively poor, and because she, for various reasons, cannot rely on the father for support, even despite…

[01:21:45] Kim Krawiec: Is this survey data? What type of –I’m not familiar with it. What sort of data do we have?

[01:21:49] Ilya Somin: I’m not sure, but as I understand it, a lot of this is survey data asking women who had abortions why they did it. And the survey data isn't perfect but I think....

[01:22:00] Kim Krawiec: Because, it might look a lot better to say I just can't afford it than to say I just don't feel like it.

[01:22:05] Ilya Somin: Yeah, I understand that there might be social desirability bias, but even if you think that the number of women who get abortions for economic reasons is, say, only 50% or 20% of those who say that they do, that's still a lot of people. And so the bottom line is, and I doubt that there's experts who seriously disagree. The bottom line is that there is a good many women who get abortion, at least abortions, at least in large part for economic or financial reasons, even if that's not the motivation of all women or not, certainly not the only possible motivation.

[01:22:38] Kim Krawiec: Is this necessary to your argument? It’s not, is it?

[01:22:40] Ilya Somin: It's not necessary at all. It's just part of my rebuttal to claims that we shouldn't legalize organ markets because poor people might want to engage in them for economic reasons and they might feel that they didn't have a better economic offer or the like. My point there is that this is also true of many people who decide on abortions. But this is just one of many arguments that I have against the exploitation of the poor objection to organ markets. So this argument by itself is not essential to my thesis. And for what it's worth, I do believe that women should it should be legal for women to have abortions for economic reasons or indeed, for almost any reasons that they want, with the exception of a few types of late term abortions where the fetus is so fully developed or close to fully developed that its moral status really is similar to that of an infant. And at that point I think the calculus does shift. But the data suggests that this is only a tiny fraction of all abortions. 90% or more of abortions take place in the first trimester and of those that take place later, a large percentage of them take place in the second trimester, early on in it. Third trimester abortions, when they do occur, many of them do really do involve situations where the life of the mother is seriously threatened or where it's likely, as in one or two cases that I know about with acquaintances of mine where the fetus is likely to be born dead anyway or something of that sort. And a friend of mine and my wife's actually faced a situation like that and she chose to carry the pregnancy to term. But I could have totally understood if she said, you know what, this baby has no actual chance of life anyway, so why not end it earlier? 

[01:24:30] Dennis Ting: Yeah, well, thank you again so much for your time. I can't believe that it's only been like an hour and a half. I feel like we could talk for days if we wanted to, but yeah. On behalf of everyone in this class and Joseph, thank you again so much. It's been really enlightening, and we appreciate you answering a lot of tough questions and shedding some light on your thoughts, your theories and the reason behind your article. Like I said before, it was a very interesting and fun read and a fun discussion and I'm glad we were able to do this.

[01:25:06] Ilya Somin: Thank you so much and great questions and I wish you good luck with the rest of the semester.

[01:25:11] Kim Krawiec: Hey, well, thank you so much. It was great to see you.

[01:25:14] Ilya Somin: Thank you. It was great questions, and it's an honor to be part of this. And good luck with the rest of your semester.