Cascade Effects and Radical Moderation

Justice doesn't exist in black and white

Photo by Jack Skinner on Unsplash

I have a new article out this week in the journal Social Philosophy and Policy, titled “Structural Hobbling: Regressive Harm, Diffuse Responsibility, and Structural Injustice.”

(I actually had to look up my own title to remember what it was, which is a sure sign that it’s both too long and too academic, but alas. Here we are.)

Article title aside, the topic is a good example of why thinking in four dimensions helps us identify problems we might otherwise miss.

In the article, I define structural hobbling as “neutral or even seemingly well-meaning laws and rules, achieved via democratic deliberation and representation, might contribute to structurally unjust systems and/or domination and unfreedom.”

The thought is not really new, since Tocqueville described the kind of despotism democracies have to fear in the 1700s as “a network of small, complicated, minute, and uniform rules, which the most original minds and the most vigorous souls cannot break through to go beyond the crowd.” But the neologism is meant to distinguish structural hobbling from other kinds of structural injustice, whose causes are usually understood to be the individual actions of private actors, rather than state activity.

False Binary Alert: State vs. Market

This traditional definition of structural injustice suffers from a theoretical asymmetry common to the social sciences (and our politics broadly). When we’re focused on causes of injustice (for example) that align with our political priors, we often miss other important harms that interact with others. And we’re also more willing to attribute complexity and context to our “side” (whether that’s our research group or our political “team”) than we are to an explanation offered by the other side.

This is symptomatic of a larger problem with our public discourse: we make broad generalizations about public policy along partisan lines, which obscures what we really need to dig into and makes it hard to identify solutions.

Some of the most common binaries that affect the way we think about public policy including positions like “government good, capitalism bad” or the reverse “markets good, state bad.” But in either case, what we actually care about are the different incentive structures within each system and how they interact with each other and with other parts of the system.

The reality, of course, is that the landscape I work to lay out here shows clearly that governments, markets and civil society interact all the time in complicated ways. They’re actually enmeshed with each other so deeply that we can’t easily separate them. But what we can do is work to identify the tradeoffs involved in different kinds of systems and do a better job of understanding how different levels of systems interact.

A scholar on Facebook recently suggested I check out Jennifer Pahlkha’s Substack Eating Policy. (Her most recent post Jed is a great read).

Pahkla’s work perfectly embodies the rejection of binary thinking that we need to do more of, not only to escape the toxic polarization and tribalism that’s tearing us apart, but also to develop real and meaningful policy that improves people’s lives.

Here’s a clip from Pahlka’s post from November on Understanding the Cascade of Rigidity (emphasis added):

…when regulations sound reasonable on paper but end up functioning more restrictively is what I call the cascade of rigidity. I think it’s a useful concept to clarify because other corners of the comments are caught in unhelpful fights about whether regulation is a good thing or a bad thing, with some folks correctly pointing out that it’s not a binary. Any time you subject an individual or institution to regulation, you are making a tradeoff with the possible benefit on one side (keeping kids safe from unsanitary conditions in daycare, for example) and the costs of compliance (inspections, extra sinks to separate hand washing from food prep, for example) on the other side. The trick is to get the highest benefit for the lowest cost. How you craft the regulation matters, and the best regulators know this. But they don’t always understand how the words they write will be operationalized.

I love this for a lot of reasons.

Most obviously, her approach is clearly radically moderate because it requires rejecting seemingly simple binaries in order to get at the root of what we’re actually trying to do and focuses on tradeoffs instead of ideological purity tests.

Regulations - like almost every human innovation - are neither good nor bad. It’s how they’re written, implemented, and used by fallible humans operating in complex contexts that gives us good or bad results.

Watersheds and Cascades of Unintended Consequences

The second reason I love this is that her term “cascade of rigidity” echoes analogies I’ve been playing with for a long time in the healthcare context.

In my 2019 book The Medicalization of Birth and Death, I use the term “watershed” to describe the way high level regulations and rules shape the broader landscape in a way that parallels what medical professionals and bioethicists often call the “cascade of interventions.”

Both analogies play with the idea that what happens at one discrete point of action has complex and often unpredictable downstream effects on other things. In the medical context, it results in unnecessary interventions and avoidable harm. In the regulatory context, we often get layered regulations that in turn interact with each other to shape the landscape that people are trying to navigate in unintentional and sometimes deeply harmful ways. Even in the somewhat mundane world of academic administration, various administrators in a meeting yesterday discussed how our university keeps layering on student success programs without actually assessing them or looking at how they interact with other existing programs. The result is wasted resources, overwhelmed students (and staff), and territorial disputes and conflicts.

What this means, of course, is that it’s somewhat nonsensical to talk about whether a specific law or policy is good or bad until we know how it interacts with the individuals who are enforcing it and who it’s being enforced on, how it interacts with other levels of law, and what it might do to broader social and political goals that we also care about.

Regulatory Cascades and Structural Hobbling

To show how regulatory cascades work in practice, here’s one of the narratives from my article (if you want the full text, DM me and I’ll send you a copy):

Mariana is a Black mother of two in her early thirties who moved back to her hometown in the Bronx from upstate New York to be closer to her aging parents and to serve her community. She is a certified professional midwife (CPM), a certification that is accepted in thirty-six states and the District of Columbia. She worked hard as a first-generation college student to earn an undergraduate degree in biology and her CPM credential. Her goal is to earn money to pay off her student loans and take care of her two young children while serving women of color by providing safe home births to women in the Bronx. Her research suggests that there is great need and demand for such a service due to serious disparities in maternity care and outcomes in local hospitals. Home birth for low-risk women is cost-effective, very safe, and many women of color strongly prefer care from culturally competent providers, particularly female providers of color. Midwifery is also a path to the middle class and an opportunity for Mariana to own her own small business. Mariana’s goal is reasonable and even laudable on liberal grounds.

Yet, when Mariana researches options for pursuing her career in her hometown, she finds much to her dismay that she is unemployable as a midwife. To begin, the CPM certification she holds is not recognized in New York state. New York recently prosecuted a CPM for “impersonating a [licensed] midwife,” despite that midwife holding a certification recognized in two-thirds of American states and practicing in a maternity desert in a Mennonite community with few licensed options. Given this active prosecution of CPMs, Mariana is unwilling to risk providing home birth care without state permission.

She does more research and finds that the only legal option she has is to go back to school to get an undergraduate nursing degree as well as a masters, both of which are required for the Certified Nurse Midwife (CNM) certification, which is one of the only available certifications that will allow midwives to practice independently in New York state.

Mariana, whose family income hovered around the poverty line while growing up, is still paying off student loan debt for her undergraduate degree and her CPM while trying to save money for her own children’s college educations. She cannot afford another four to six years of education, lost earnings, and student loan debt just to get the CNM credential.

Moreover, she is concerned that additional debt would eliminate her ability to practice outside of hospitals, which is her primary goal. Medicaid provides very low reimbursement rates for out-of-hospital births and many homebirth midwives must balance the number of Medicaid clients with full-pay out-of-pocket clients. Additional student loan debt would tip this balance even further toward wealthy full-pay clients. Mariana does not want to serve wealthy clients in Manhattan merely to service additional student loan debt, because her goal is to serve low-income women of color in her own community. She decides that, even if she were to pursue the CNM credential, she would be unable to serve the women she hopes to serve.

Despite having a credential that is legally recognized in thirty-six other states and the District of Columbia, Mariana cannot provide care for women in her community. She cannot legally practice in her own community without risk of prosecution. Even if she were free from fear of prosecution, she cannot bill Medicaid for the care she provides, because Medicaid follows local licensure laws. She also cannot practice in hospitals, because New York does not recognize her credential and hospitals, too, follow state licensing requirements. She hopes there might be another way.

Perhaps she can work in a birth center as a CPM, under the supervision of an obstetrician or CNM. She is puzzled to find that there are only three birth centers in the entire state, none of which is located in the Bronx. Mariana is entrepreneurial and thinks that perhaps she can fill a need by opening a birth center in partnership with a CNM so that she can practice outside the hospital context. When she researches the process for opening a birth center, the small number of birth centers in New York is explained. New York has a Certificate of Need (CON) law requiring all new health-care facilities—even small outpatient clinics that do not do surgery, such as birth centers—to go through a complex and expensive approval process. It can take as long as two years and hundreds of thousands of dollars in fees before even paying for equipment and personnel. Mariana calls a private health-care consultant whose job is to help companies and entrepreneurs navigate the CON process. Despite offering his services at a reduced nonprofit rate of $40,000, Mariana cannot come close to finding that amount of money, even assuming that she could find a CNM or obstetrician partner and then raise funding for the facility itself.

As she explores ways to crowdsource funding options for the birth center, she looks for spaces that might be suitable. As she looks, however, she finds that the CON process interacts with local building codes to price her out of available buildings in her area. Before she applies for the CON, she must have a facility rented for an entire year, but there are few facilities in her area that meet local code requirements for a medical clinic. Large medical centers with cash reserves comply with these codes by building new buildings in the suburbs, but new construction in the Bronx is extremely expensive and existing housing stock is older and typically fails to meet the demands of the local building codes, such as a mandated ceiling height. She is also frustrated that many of these codes do not apply to her care model. One code requires doorways to accommodate gurneys, which is not the norm in any birth center model in any other state, given that birthing women are typically ambulatory and do not require gurneys. Renovating even the least expensive facility on her list to meet these codes would cost hundreds of thousands of dollars.

Mariana finishes her research and feels defeated. Instead of being able to make a middle-class living serving her community, she continues her work as a phlebotomy technician making close to minimum wage. She assists births on the side as a doula, but she finds that most of the women in her area cannot afford to pay out of pocket for doula care and she struggles to juggle the uncertainty of the schedule with her full-time job. She eventually decides that, given these obstacles, she cannot use her expertise to serve her community. She puts her goals on hold while looking for a better job as a medical technician.

Mariana’s desire to earn a living while serving her community is reasonable, cost-effective, and consistent with her preferences and the needs of the most vulnerable members of her community. It is even morally laudable by most standards. Yet, as with Joseph’s case, a web of legal and policy restraints made that desire impossible to fulfill.

Mariana’s story, a composite of a number of midwives and doulas I met during my research on the medicalization of birth, shows us how even well-meaning regulations can combine with others to create layers of rigidity (to use Pahlka’s phrase) that make it harder and harder for civil servants (in Pahlka’s case), health care providers (in my earlier research), and small entrepreneurs (in the above example).

None of this means that we should indiscriminately burn down regulations, but it also means that not every nail we find needs a regulatory hammer. We need a more thoughtful and systems-based approach to public policy that does a better job recognizing the harms of compounding regulations.

All this is part and parcel of the goal of rejecting binary thinking and exploring our lives - including our policies and regulatory spaces - in all four dimensions, not just the dimension we happen to like or agree with.

As always, let me know what you think!

Leave a comment, subscribe, or share! Feedback on this post or the larger article (if you slog through it) is really helpful, since it may become part of a larger book project (eventually).

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