Motorcycle Helmet Laws, Libertarian Values, and Public Health

 PUBLIC HEALTH THEN AND NOW 

Paternalism Its Discontents& Motorcycle Helmet Laws, Libertarian Values, and Public Health

| Marian Moser Jones, MPH, and Ronald Bayer, PhD

The history of motorcycle helmet legislation in the United States reflects the ex- and antipaternalistic values may helmet laws has occurred as the tent to which concerns about individual liberties have shaped the public health de- have on US public health policy. United States has moved toward bate. Despite overwhelming epidemiological evidence that motorcycle helmet laws Currently, only 20 states, the greater statutory regulation of au- District of Columbia, and Puerto tomobile safety. During the past reduce fatalities and serious injuries, only 20 states currently require all riders to Rico require all motorcycle riders 20 years, every state except New wear helmets. During the past 3 decades, federal government efforts to push states to wear helmets (Figure 1). In an- Hampshire has enacted a manda- toward enactment of universal helmet laws have faltered, and motorcyclists’ advo- other 27 states, mandatory hel- tory seat belt law, and since cacy groups have been successful at repealing state helmet laws. This history raises met laws apply only to minors 19 9 8, the National Highway and questions about the possibilities for articulating an ethics of public health that would (aged younger than 18 years or Traffic Safety Administration call upon government to protect citizens from their own choices that result in need- 21 years depending on the state), (NHTSA) has required that all less morbidity and suffering. (Am J Public Health. 2007;97:208–217. doi:10.2105/ and 3 states—Colorado, Illinois, new cars sold in the United States AJPH.2005.083204) and Iowa—have no motorcycle be equipped with dual air bags.3 helmet laws. Additionally, 6 of The repeal of motorcycle hel- the 27 states with minor-only met laws in the United States IN THE FACE OF OVERWHELMING helmet laws require that adult rid- contradicts a global movement epidemiological evidence that ers have $10 000 of insurance toward enacting mandatory hel- motorcycle helmets reduce acci- coverage or that helmets be worn met laws; as of 2003, at least 29 dent deaths and injuries, state during the first year of riding countries—including most Euro- legislatures in the United States (Table 1).1 This uneven patch- pean Union countries, the Russ- have rolled back motorcycle work of state regulations on mo- ian Federation, Iceland, and helmet regulations during the torcycle helmet use contrasts dra- Israel—had passed mandatory past 30 years. From the jaws of matically with the picture 30 helmet laws for motorcycles. public health victory, the states years ago, when 47 states, the Developing countries, including have snatched defeat. There are District of Columbia, and Puerto Thailand and Nepal, also have many ways to account for the Rico had passed mandatory hel- passed helmet laws in recent historical arc; we focus here on met laws that applied to all years. Varying levels of enforce- the enduring impact libertarian riders.2 The repeal of motorcycle ment and other factors, such as

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the general safety and quality of crash helmets mitigated the sever- the roads, influence the effective- ity of head injuries suffered by ness of these laws in different military motorcyclists during countries.4 In 1991, the World crashes.7 Health Organization launched a After World War II, the British global helmet initiative to encour- government’s Ministry of Trans- age motorcycle and bicycle hel- port became the first regulatory TABLE 1—Helmet Use Requirements by State: United States, 2006 5 met usage worldwide. Why agency in the world to establish States That then have things taken such a dif- research-based motorcycle helmet States That Require Helmet States That ferent turn in the United States? performance standards. During Require Helmet Use for Minors Do Not Require a b c We conducted a historical exami- the early 1950s, the ministry of- Use For All Ages or Some Riders Helmet Use nation of the debates on motorcy- fered the British Standards Insti- Alabama Alaska Colorado cle helmet laws in the United tute “kite mark” (a diamond- California Arizona Illinois States to answer this question. In shaped seal) as an indicator of District of Columbia Arkansas Iowa 8 reporting the results, we address helmet quality and performance. Georgia Connecticut tensions between paternalism In the United States, however, no Maryland Delawarea and libertarian values in the pub- such standard existed, and ads for Massachusetts Floridab lic health arena—tensions that American motorcycles invariably Michigan Hawaii have come to the fore recently showed riders without helmets or Mississippi Idaho with developments in tobacco goggles. The initial market for Missouri Indiana policy. As efforts to articulate an these bikes included returning Nebraska Kansas ethics of public health advance, it veterans who had learned to ride Nevada Kentuckyc is crucial that the question of pa- military-issue Harley-Davidsons New Jersey Louisianad 9 ternalism be addressed. The his- while overseas. During the late New York Mainee tory of motorcycle helmet legisla- 1940s and early 1950s, motorcy- North Carolina Minnesota tion provides a unique vantage cle clubs created an “outlaw” mas- Oregon Montana point on that issue. culine social identity around mo- Puerto Rico New Hampshire torbikes—part of an emerging Rhode Islandh New Mexico THE ORIGIN OF cultural reaction to the social con- South Carolina North Dakota MOTORCYCLE HELMET fines of 1950s suburbia. At the South Dakota Ohiof LAWS same time, the motorcycle took its Tennessee Oklahoma place amid the variety of new Texasi Pennsylvaniag Motorcycle racers used crash hel- postwar consumer culture offer- Vermont mets as early as the 1920s. Hel- ings, and many young men took Virginia mets were more widely used dur- up riding motorcycles as a week- Washington 10 ing World War II, when Hugh end hobby. West Virginia Cairns, a consulting neurosurgeon The 1966 National Highway a to the British Army, recom- Safety Act introduced drastic and Required for riders aged younger than 19 years and helmets must be in the possession of other riders, even though use is not required. mended mandatory helmet use unwelcome changes to US mo- bRequired for riders aged younger than 21 years and for those without $10|000 of for British Service dispatch riders, torcycle culture. The law, which medical insurance that will cover injuries resulting from a motorcycle crash. c who carried instructions and bat- was introduced after the 1965 Required for riders aged younger than 21 years, riders operating a motorcycle without an instruction permit, riders with less than one year’s experience, and riders who do tle reports between commanders publication of Unsafe at Any not provide proof of health. and the front lines via motorcy- Speed, Ralph Nader’s scathing in- dRequired for riders aged younger than 18 years and for those who lack $10 000 in cles.6 Cairns first became con- dictment of the US auto indus- medical insurance coverage. Proof of such an insurance policy must be shown to a law enforcement officer upon request. cerned about helmet use after try’s vehicle safety standards, in- eRequired for riders aged younger than 15 years, novices, and those with learner’s permits. treating the war hero T. E. cluded a provision that withheld fRequired for riders aged younger than 18 years and for first-year operators. g Lawrence—otherwise known as federal funding for highway Required for riders aged younger than 21 years and for those aged 21 years and older who have had a motorcycle operator’s license for fewer than 2 years or who have not Lawrence of Arabia—for a fatal safety programs to states that did completed an approved motorcycle safety course. head injury suffered during a not enact mandatory motorcycle hRequired for riders aged younger than 21 years and for first-year operators. i 1935 motorcycle accident. Cairns helmet laws within a specified Required for riders aged 20 years and younger and for those who have not completed a rider training course or who do not have $10000 of medical insurance coverage. later published several landmark time frame. This provision was Source. National Highway and Traffic Safety Administration (NHTSA).Traffic Safety Facts: articles that used clinical case re- added after a study showed that Motorcycle Helmet Laws.1 ports to show that motorcycle helmet laws would significantly

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decrease the rate of fatal acci- proposed a mandatory motorcycle constitutional equivalents by dis- dents. The National Highway helmet ordinance after the death criminating against motorcycle Safety Act was passed without of a 15-year-old motorcyclist, riders as a class, and (2) helmet debate on the helmet law provi- more than 100 motorcyclists statutes constituted an infringe- sion.11 Adoption of this measure came to the council’s chamber to ment on the motorcyclist’s liberty drew upon a broader movement protest during hearings on the and an excessive use of the state’s within public health to expand its ordinance. The Los Angeles Times police power under the due proc- purview beyond infectious dis- reported that the Hells Angels ess clause of the Fourteenth ease to “prevention of disability planned to bring “at least 500 Amendment or similar state pro- and postponement of untimely members” on the day of the visions. Only the Illinois Supreme death.”12 Several years later, this scheduled vote. The councilman Court and the Michigan Appeals shift sparked debate on the role then withdrew his proposed Court accepted these arguments. of both individual and collective ordinance.16 The Illinois Supreme Court ruled behaviors in contemporary pat- that the helmet laws constituted terns of morbidity and mortality, CONSTITUTIONAL an infringement on motorcyclists’ which led to Marc Lalonde’s New CHALLENGES TO rights. Perspective on the Health of Cana- MANDATORY HELMET If the evil sought to be reme- dians (1974), the US govern- LAWS died by the statute affects pub- ment’s Healthy People Initiative lic health, safety, morals or wel- (1979) and, most famously, John As soon as states began to pass fare, a means reasonably directed toward the achieve- H. Knowles’s controversial but mandatory helmet laws, oppo- ment of those ends will be held agenda-setting article, “The Re- nents mounted constitutional chal- to be a proper exercise of the sponsibility for the Individual,” lenges to them. Some challenges police power [citations omitted]. However, [t]he legislature may which asserted that individual involved appeals in criminal cases not, of course, under the guise lifestyle choices determined the against motorcyclists who had of protecting the public interest, major health risks for Western been arrested for failing to wear interfere with private rights 13 [citations omitted]. . . . The society. helmets; others were civil suits manifest function of the head- As of 1966, only 3 states—New brought by motorcyclists who al- gear requirement in issue is to York, Massachusetts, and Michi- leged that the laws deprived them safeguard the person wearing it—whether it is the operator or gan—and Puerto Rico had passed of their rights. Between 1968 and a passenger—from head injuries. motorcycle helmet laws, but be- 1970, high courts in Colorado, Such a laudable purpose, how- tween 1967 and 1975, nearly Hawaii, Louisiana, Missouri, Mass- ever, cannot justify the regulation of what is essentially a every state passed statutes to achusetts, New Jersey, North Car- matter of personal safety.19 avoid penalties under the Na- olina, North Dakota, Ohio, Ore- tional Highway Safety Act. By gon, Tennessee, Texas, Vermont, The Michigan Appeals Court September 1975, California was Washington, and Wisconsin and heard a case brought by the the only state to not have passed lower courts in New York all re- American Motorcycle Association, a mandatory helmet law of any jected challenges to the constitu- then the country’s largest organi- kind. This resistance carried tionality of their state motorcycle zation for motorcyclists, which ar- weight because California had helmet laws.17 In June 1972, a US gued that the state’s motorcycle both the highest number of regis- District Court in Massachusetts law violated the due process, tered motorcyclists and the high- similarly rejected a challenge to equal protection, and right to pri- est number of fatal motorcycle the state’s helmet law that was vacy provisions of the federal con- crashes.14 Additionally, motorcy- brought on federal constitutional stitution. The association cited the cle groups in the state had devel- grounds, and in November of that US Supreme Court’s birth control oped into a powerful antihelmet year, the US Supreme Court af- decision in Griswold v. Connecticut lobby. State legislators made 8 at- firmed this decision on appeal as authority for establishing a tempts between 1968 and 1975 without opinion.18 right to privacy. The state attor- to introduce helmet legislation, The constitutional challenges ney general contended that the but they were thwarted by vocal focused principally on 2 argu- law did not just concern individ- opposition from the motorcycle ments: (1) helmet statutes violated ual rights and was intended to groups.15 In September 1973, the equal protection clause of the promote public health, safety, and when a Burbank councilman Fourteenth Amendment or state welfare. Furthermore, the state

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argued that it had an interest in the “viability” of its citizens and could pass legislation “to keep them healthy and self-support- ing.” The Appeals Court, however, countered that “this logic could lead to unlimited paternalism” and found the statute unconstitutional.20 The court also rejected the claim that the state’s power to regulate the highways provided the basis for imposing helmet use.

There can be no doubt that the State has a substantial interest in highway safety . . . but the difficulty with adopting this as a basis for decision is that it would also justify a requirement that automobile drivers wear helmets or buckle their seat belts for their own protection!21

The plaintiff in the Massachu- a finding that motorcyclists are the bareheaded cyclist and cause Note. Black States have mandatory univer- setts District Court case used an especially prone to serious head him to lose control of his vehi- sal helmet laws; light gray states’ helmet argument nearly identical to those injuries . . . the public has an in- laws cover only minors or some riders; cle,” and “the wind or an insect that had been successful in Illinois terest in minimizing the resources dark gray states have no helmet laws. directly involved. From the mo- flying into the cyclist’s eyes could and Michigan: a helmet law was Sources. R. G. Ulmer and D.F. Preusser, ment of the injury, society picks create a hazard to others on the designed solely to protect the mo- “Evaluation of the Repeal of Motorcycle the person up off the highway; de- 25 Helmet Laws in Louisiana, October 22 highway.” torcyclist. The plaintiff’s argu- livers him to a municipal hospital 2002,” U.S. Department of Transporta- and municipal doctors; provides ment cited John Stuart Mill’s asser- tion, National Highway Transportation him with unemployment compen- THE BIKER LOBBY ROARS tion that “the only part of the Safety Administration (NHTSA) Report sation if, after recovery, he cannot INTO ACTION No. HS 809 530; Fast Fred’s Motorcycle conduct of anyone, for which he is replace his lost job, and, if the in- Rights e-zine, http://www.fastfreds.com/ jury causes permanent disability, amenable to society, is that which helmetlawmap.htm.2. Accessed Novem- may assume the responsibility for 23 Motorcyclists had long been ber 22, 2006. concerns others.” The District his and his family’s continued organized—whether they be- FIGURE 1—Legal Protection for Court rejected this line of reason- subsistence. We do not under- stand a state of mind that permits longed to informal clubs, racing Motorcyclists by State, 2006. ing. Although it relied on Mill’s plaintiff to think that only he him- associations under the aegis of the distinction between self-regarding self is concerned.24 [authors’ American Motorcycle Association, and other-regarding behavior, the emphasis] or “outlaw” biker gangs, such as court clearly found injuries that Although others echoed the the Hells Angels—and the passage resulted from motorcycle riders Massachusetts decision by using of motorcycle helmet laws galva- failing to wear a helmet to be economic—utilitarian—arguments nized the groups to become politi- other-regarding harms. Even more to reject constitutional challenges cal. During the 1970s, the Ameri- striking was that the court found to helmet laws, some courts up- can Motorcycle Association, the psychological burden on care- held motorcycle statutes on the which was founded in 1924 as a givers to be an other-regarding basis of the narrow ground that hobbyist group, organized a lob- basis for intervention. helmet use affects the safety of bying arm to “ . . . coordinate na- For while we agree with plaintiff other motorists. A Florida US tional legal activity against un- that the act’s only realistic pur- District Court held that a require- constitutional and discriminatory pose is the prevention of head injuries incurred in motorcycle ment for motorcyclists to wear laws against motorcyclists, to mishaps, we cannot agree that both helmets and eye protection serve as a sentinel on federal and the consequences of such in- was not an unreasonable exercise state legislation affecting motorcy- juries are limited to the individual who sustains the injury. In of state police power because “[a] clists, and to be instrumental as a view of the evidence warranting flying object could easily strike lobbying force for motorcyclists

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hearings, Bruce Davey of the Although others echoed the Massachusetts decision by using Virginia chapter of ABATE, economic utilitarian arguments to reject constitutional challenges opened with a frontal attack on such data. He charged that to helmet laws, some courts upheld motorcycle statutes on NHTSA had manipulated evi- “ the basis of the narrow ground that helmet use affects the dence about the effectiveness of safety of other motorists. motorcycle helmets. Furthermore, he asserted that helmets actually increased the likelihood of neck and motorcycling interests.’’26 Ad- Other state-level groups, which injuries.32 Davey then advanced a ditionally, those who identified ”called themselves motorcyclists’ series of constitutional claims that with the biker culture, including rights organizations, also began to were rooted in an antipaternalistic members of outlaw motorcycle form around the country. The ethic, which enshrined a concept gangs and thousands of other men Modified Motorcycle Association, of personal liberty, and that bore who rode choppers (modified mo- a group of chopper riders founded striking similarity to those that torcycles with high handlebars in 1973 that eschewed the outlaw had failed in the judicial arena. In and custom detailing), became in- behavior of Hells Angels, engaged an argument more reflective of volved in state-level and national- in both antihelmet law political ac- cultural attitudes than legal preci- level groups that advocated the re- tivity and local campaigns against sion, he stated, peal of helmet laws and other police harassment of bikers.30 limitations to riding motorcycles.27 In 1975, these groups began to The Ninth Amendment [to the US Constitution] says no law In its October 1971 issue, Easy- turn the tide against proponents shall be enacted that regulates riders, a glossy magazine for chop- of mandatory helmet laws. Mo- the individual’s freedom to per riders, underscored the need torcyclists, who had only thus far choose his personal actions and mode of dress so long as it for a national effort. been successful in the appellate does not in any way affect the courts of 2 states and in stopping life, liberty, and happiness of You, as an individual, can stand helmet bills in California, had others. We are being forced to on your roof-top shouting to the wear a particular type of ap- world about how unjust, how evolved into an organized and parel because we choose to stupid, and how unconstitutional powerful national lobby. In June ride motorcycles.33 some of the recently passed, or pending, bike laws are—but all and again in September 1975, you will accomplish is to get hundreds of bikers descended on Not surprisingly, the issue of yourself arrested for disturbing Washington, DC, where they choice emerged as the central the peace. Individual bike clubs can go before city councils, state rode their choppers around the theme in the arguments of those legislatures, and congressional US Capitol to protest mandatory opposed to helmet laws, similar to committees, but as single clubs, helmet laws. In the post-Water- the arguments of women’s repro- and unprofessional at the game of politics, their efforts are usu- gate environment, motorcyclists ductive rights advocates. Just as ally futile. . . We need a national found a newly receptive ear in proponents of legalized abortion organization of bikers. An or- Congress.31 Representatives of had argued that they were not pro- ganization united together in a common endeavor, and in suffi- ABATE, the American Motorcy- abortion but were in favor of a cient numbers to be heard in cle Association, the Modified Mo- woman’s right to choose whether Washington, DC, in the state torcycle Association, and other to terminate a pregnancy, ABATE legislatures, and even down to the city councils.28 motorcyclists’ rights organizations chapter literature stated “ABATE were invited to hearings held in does not advocate that you ride The article went on to ask for July 1975 by the House Commit- without a helmet when the law is $3 donations to the National Cus- tee on Public Works and Trans- repealed, only that you have the tom Cycle Association, a nonprofit portation to discuss revisions to right to decide.”34 organization established by the the National Highway Safety Act. At the end of the hearings, magazine. By the following Febru- Recognizing that proponents of Representatives James Howard ary, the organization had mem- motorcycle helmet laws, in the (D-NJ) and Bud Schuster (R- PA) bers in 44 states and had changed tradition of public health, had said they would support revisions its name to A Brotherhood used statistical evidence of injury to the National Highway Safety Against Totalitarian Enactments and death to make their case, the Act that removed the tie between (ABATE).29 first motorcyclist to speak at these federal funding and state helmet

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laws. A bill that included these re- reinstate the enactments. She the social burden created by mo- visions had already been intro- cited studies that showed motor- torcycle accidents and fatalities.41 duced in the House by Stewart cycle fatalities were 3 to 9 times In 1981, the American Journal McKinney (R-CT), an avid motor- as high among helmetless riders of Public Health published a cyclist, who remarked, compared with helmeted riders counterpoint to Baker’s editorial, and that head injury rates had in- which was unusual in that it My personal philosophy con- creased steeply in states where came from a public health offi- cerning helmets can be 39 summed up in three words. It’s helmet laws had been repealed. cial. Richard Perkins of New Mex- my head. Personally, I would not get on a 55-mile-per-hour highway without my helmet. Just as proponents of legalized abortion had argued that they were But the fact of the matter is that if I did, I wouldn’t be jeopardiz- not pro-abortion but were in favor of a woman’s right to choose ing anyone but myself, and I feel that being required to wear whether to terminate a pregnancy, ABATE chapter literature stated a helmet is an infringement on 35 “ my personal liberties. ‘ABATE does not advocate that you ride without a helmet when the law is repealed, only that you have the right to decide.’ The prospect of ending a threat to withdraw highway funds at- tracted the notice of liberal Sena- “Now that some states have re- ico’s Health and Environment tor Alan Cranston (D-CA), who pealed such legislation we have Department attacked the argu- ” signed on as a cosponsor of a Sen- control and experimental groups ment that the motorcyclist was re- ate bill introduced by archconser- which when compared show that ducing the freedom of others by vative Senators Jesse Helms (R- one of the rights enhanced by re- not wearing a helmet as “so NC) and James Abourezk (R-SD). peal is the right to die in motorcy- ridiculous as to be ammunition On December 13, 1975, the Sen- cle deaths,” opined an editorialist for the anti-helmet law forces.”42 ate voted 52 to 37 to approve a in the June 1979 issue of the Noting that there were no helmet bill that revised the National High- North Carolina Medical Journal.40 laws for rodeo contestants and way Safety Act. The House passed For those concerned about rock climbers, he argued that a similar measure. The revisions public health, the unfolding laws should consider not only were incorporated into a massive events were viewed with alarm. safety but also “such intangible $17.5 billion bill for increasing In the June 1980 issue of the consequences as potential loss of highway funds to the states, and American Journal of Public Health, opportunity for individual fulfill- the bill was signed by President Susan Baker, an epidemiologist ment and loss of social vitality.”42 Gerald Ford on May 5, 1976.36 and director of the Johns Hopkins Baker and Stephen Teret of- Injury Prevention Center, com- fered a rebuttal to Perkins and HELMETLESS RIDERS: pared the situation to one where stated that his argument “implies AN UNPLANNED PUBLIC “scientists, having found a suc- that if policy is not applied at the HEALTH EXPERIMENT cessful treatment for a disease, outer limits of a continuum of cir- were impelled to further prove its cumstances, it would be unreason- During the next 4 years, 28 states efficacy by stopping the treatment able to apply that policy at any repealed their mandatory helmet and allowing the disease to point along the continuum.”43 laws. The consequences of these recur.”40 Invoking the 1905 US They defended their reliance on repeals were most succinctly ex- Supreme Court decision in Jacob- Jacobson v. Massachusetts by point- pressed in the September 7, 1978, son v. Massachusetts that upheld ing out that the decision has been Chicago Tribune headline “Laws compulsory immunization used as a precedent for decisions Eased, Cycle Deaths Soar.”37 statutes, Baker asserted that the that cover “manifold” restraints Overall, deaths from motorcycle state had the authority to limit in- on liberty for the common good accidents increased 20%, from dividual liberty to protect the beyond the scope of contagious 3312 in 1976 to 4062 in 1977.38 public’s health and the rights of disease.43 In 1978, NHTSA administrator others. In a reprise of arguments During the next decade, evi- Joan Claybrook wrote to the gov- made a decade earlier when hel- dence of the human and social ernors of states that had repealed met laws were under constitu- costs of repeal continued to their laws and urged them to tional attack, Baker emphasized mount. Medical costs among

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helmetless riders increased 200% government administrative costs) him, Senator Daniel Patrick Moyni- compared with helmeted riders, and indirect costs (the value of han (D-NY) sought to compare the and in some states, helmetless rid- the lost earnings and services due imposition of helmet requirements ers were more likely to be unin- to the death of the person). The with the public health justification sured.44 The April 1987 issue of researchers found that the costs for compulsory immunization.51 Texas Medicine published an edi- totaled at least $176.6 million.46 Senator James Jeffords (R-VT) re- torial entitled “How many deaths In Europe, meanwhile, where sponded with an invocation of the will it take?”45 The editorial ex- helmet laws were being enacted antipaternalistic argument so reso- emplified the growing frustration for the first time, studies were nant in American political culture. among physicians, epidemiolo- showing an opposite effect. In gists, and public health officials Italy, where a compulsory motor- Would you urge us then, at the Federal level, to mandate diets with legislatures that failed to act cycle helmet law went into effect and to investigate homes as far on evidence that showed helmet in 1986, a group of researchers as diets are concerned? We law repeals increased fatalities compared the accidents in 1 dis- would save a lot more money if we had good nutrition in this and serious injuries. “I invite our trict (Cagliari) during the 5 months country. Do you think that is a legislators and those opposed to before and the 5 months after the proper role of the government? helmet laws to spend a few nights law’s enactment. They found a . . . I think there is a vast differ- 45 ence in vaccination, where you in our busy emergency rooms,” 30% reduction in motorcycle acci- are subjecting others to a health wrote the author, who was the dents and an overall reduction in problem, . . . where you are try- chief of neurosurgery at Ben head injuries and deaths.47 ing to protect the individual health of someone who is in a Taub General Hospital in Hous- sense endangering himself and ton. “Let them talk to a few dev- HELMET LAWS IN THE not the public. I grant the argu- astated mothers and fathers of CONGRESS ONCE AGAIN ments are there on cost, but the arguments are there on cost in sons with severe head injuries— nutrition, as well. I have a hard many of whom will needlessly die In May 1989, against a backdrop time, philosophically, accepting or remain severely disabled.”45 of 34 states’ adoption of manda- that the role of the government is to tell us how to lead our Posing a challenge to the antipa- tory automobile seat belt laws, lives. Why don’t we have mo- ternalism that had inspired the re- Senator John Chafee (R-RI) held a torcycle riders wear armored peal of laws, he contended, “[a] news conference to announce he suits? Where do you draw the line? It is my understanding civilized society makes laws not was introducing a bill—the Na- that the largest percentage of only to protect a person from his tional Highway Fatality and Injury injuries are not by head, but are fellowman, but also sometimes Reduction Act of 1989—that injuries to the chest and the ab- 45 dominal areas and things like from himself as well.” would empower the US Depart- that. So where do you stop?52 Other studies adopted a more ment of Transportation to with- narrowly economic perspective hold up to 10% of federal high- Senator Jeffords’ comments on the impact of helmet law re- way aid from any state that did were echoed by Robert Ford, peals. In a 1983 article, re- not require motorcyclists to wear chairman of Massachusetts Free- searchers sponsored by the Insur- helmets and front-seat automobile dom First, an auto group that had 48 ance Institute for Highway Safety passengers to wear seat belts. led a successful campaign to re- used mathematical models to esti- The conference was strategically peal the state’s seat belt law. Ford mate the number of excess held during a meeting of the did not quibble with statistics that 49 deaths—those that would not have American Trauma Society. showed seat belts make people occurred had the motorcyclist A hearing on the bill that was safer. Instead, he argued that the been wearing a helmet—in the 28 held by the Senate Committee on issue was about fundamental indi- states that had repealed their hel- Environment and Public Works in vidual liberty. met laws by 1980. They then October 1989 provided yet one conducted an economic analysis more opportunity to engage (in a We do not want to be told how of the costs to society as a result federal forum) the argument about to behave in matters of personal safety. We do not want to of these deaths. This cost calcula- the potential benefits that would be forced to wear seat belts or tion incorporated direct costs result from the enactment of helmets because others think (emergency services, hospital and mandatory helmet laws and the that it is good for us. We do not want to be forced to eat certain medical expenses, legal and fu- deep philosophical issues such diets because some think that it neral expenses, and insurance and laws raised.50 As had others before too may be good for us, reduce

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deaths and medical costs, and in getting the federal 3% highway fatalities and the severity of in- make us more productive citi- safety fund penalties repealed.57 juries. But the antihelmet law ac- zens. We do not want to be forced to give up certain pas- In 1997, after pressure from state- tivists have had 3 decades of ex- times simply because some may level motorcycle activists, perience fighting helmet laws, and feel they entail any amount of Arkansas and Texas repealed their they have learned that their strat- unnecessary risk.53 universal helmet laws and instead egy of tirelessly lobbying state leg- required helmets only for riders islators can work. As one activist Instead of confronting the aged younger than 21 years. wrote, “I learned that the world is moral arguments made by oppo- These repeals were followed by run by those who bother to show nents of helmet laws, proponents similar actions in Kentucky up to run it.”60 More important, of such measures sought once (1998), Louisiana (1999), Florida they have learned a lesson about again to marshal the compelling (2000), and Pennsylvania (2003). how persuasive unadorned ap- force of evidence. In 1991, at the In a move that gave credence to peals to libertarian values can be. request of Senator Moynihan, the the well-worn claim about the so- This history of motorcycle hel- General Accounting Office issued cial costs of private choice, several met laws in the United States il- a comprehensive report that doc- of the new laws required riders to lustrates the profound impact of umented the toll. The report re- have $10 000 of medical insur- individualism on American cul- viewed 46 studies and found that ance coverage policy before they ture and the manner in which this they overwhelmingly showed hel- could ride helmetless. ideological perspective can have a met use rose and fatalities and se- This new round of repeals of crippling impact on the practice of rious injuries plummeted after en- motorcycle helmet laws produced public health. Although the oppo- actment of mandatory universal a predictable series of studies, nents of motorcycle helmet laws 54 helmet laws. with all too predictable results: in seek to shape evidence to buttress Despite the fierce opposition Arkansas and Texas, helmet use their claims, abundant evidence of motorcycle groups, Senator decreased significantly, head in- makes it clear—and has done so Chafee ultimately succeeded in juries increased, and fatalities rose for almost 3 decades—that in the getting the motorcycle helmet law by 21% and 31%, respectively.58 absence of mandatory motorcycle and seat belt law provisions added In 2003, a study of Louisiana helmet laws, preventable deaths to a major highway funding bill and Kentucky fatalities found that and great suffering will continue that was passed in December after repeal of helmet laws, there to occur. The NHTSA estimated 19 91. Under the law—which was was a 50% increase in fatalities in that 10 838 additional lives could far less punitive than what Senator Kentucky and a 100% increase in have been saved between 1984 Chafee had originally proposed— fatalities in Louisiana. In 2005, and 2004 had all riders and pas- states that failed to pass helmet the Insurance Institute for High- sengers worn helmets.61 The suc- laws would have 3% of their highway Safety released a study that cess of those who oppose such 55 way funds withheld. showed Florida’s helmet law re- statutes shows the limits of evi- peal had led to a 25% increase in dence in shaping policy when REENACTMENT AND fatalities in 2001 and 2002 com- strongly held ideological commit- REPEAL pared with the 2 years before the ments are at stake. repeal.59 Early on in the battles over hel- In 1991, the momentum seemed met laws, advocates for manda- to be turning in favor of state mo- CONCLUSIONS tory measures placed great stress torcycle helmet laws. For the first on the social costs of riding hel- time in its history, California en- Over the past 30 years, helmet metless. The courts, too, have acted a universal mandatory hel- law advocates have gathered a often adopted claims about such met law, which took effect on Jan- mountain of evidence to support costs as they upheld the constitu- uary 1, 199256; however, this their claims that helmet laws re- tionality of statutes that impose brief moment of public health op- duce motorcycle accident fatalities helmet requirements. Whatever timism was short-lived. In 1995, and severe injuries. Thanks to the the merit of such a perspective, after the “Gingrich Revolution,” in rounds of helmet law repeals, it clearly involved a transparent which conservative Republicans advocates have been able to con- attempt to mask the extent to took control of Congress, the na- clusively prove the converse as which concerns for the welfare tional motorcycle lobby succeeded well: helmet law repeals increase of cyclists themselves were the

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central motivation for helmet About the Author Helmet Law on Fatalities,” World Health laws. The inability to successfully Marian Moser Jones is with the Center Organization Helmet Initiative Headlines for History and Ethics of Public Health, Mail- Newsletter, Summer 2005, available at and consistently defend these man School of Public Health, Columbia Uni- http://www.whohelmets.org/headlines/ measures for what they were— versity, New York, NY. Ronald Bayer is with 05-summer-thailandlaws.htm, accessed acts of public health paternalism— the Center for History and Ethics of Public October 20, 2006. The article reports a Health and the Department of Sociomedical study showing that Thailand’s helmet was an all but fatal limitation. Sciences, Mailman School of Public Health. law has failed to reduce fatalities by mo- The recent trend toward mo- Requests for reprints should be sent torcycle accidents partly because helmet torcycle helmet laws that cover to Marian Moser Jones, MPH, Center for the quality is unregulated and proper helmet History and Ethics of Public Health, Mail- usage is not enforced. minors, however, shows that leg- man School of Public Health, Columbia Uni- 5. “Worldwide Motorcycle Safety islators and some antihelmet law versity, 722 W 168th St, 9th Fl, New York, Helmet Laws,” UNESC Working Party forces have accepted a role for NY 10032 (e-mail: [email protected]). on Road Traffic Safety; TRANS/WP. This article was accepted February 26, 1.80/Rev 28 January 2003, Table 9, paternalism in this debate. The 2006. available at http://www.whohelmets.org/ need for a law that governs mi- helmetlaws.htm, accessed November 22, nors shows a tacit acknowledg- Contributors 2006. R. Bayer originated the study. M.M. Jones 6. “Obituary, Hugh William Bell ment that (1) motorcycle helmets conducted historical research. The Cairns,” Lancet, July 26, 1952, p. 202. reduce deaths and injuries and authors co-wrote the text. 7. Nicholas F. Maartens, Andrew D. (2) the state has a role in protect- Wills, Christopher B. T. Adams, “Lawrence Acknowledgments of Arabia, Sir Hugh Cairns, and the Origin ing vulnerable members of soci- The authors acknowledge the faculty and of Motorcycle Helmets,” Neurosurgery, 50 ety from misjudgments about mo- students of the Center for History and (2002):177. R.F. Hugh Cairns, “Head In- torcycle safety. Ironically, then, it Ethics of Public Health at the Mailman juries in Motorcyclists: The Importance of School of Public Health and colleagues in the Crash Helmet,” British Medical Journal is the states within which the mo- the Department of Sociomedical Sciences 2:465–483, 1941; Cairns, “Crash hel- torcycle lobby has been most ef- who reviewed this article. mets. Br Med J 2:322–324, 1946; fective that have most directly en- Cairns, AHS Holbourn, “Head injuries in Human Participant Protection motorcyclists, with special reference to gaged paternalist concerns. No protocol approval was needed for this crash helmets,” British Medical Journal 1 The challenge for public health study. (1943):592–598. is to expand on this base of justi- 8. Edward B. Becker, “Helmet Devel- Endnotes opment and Standards,” in N. Yoganan- fied paternalism and to forth- 1. National Highway Traffic Safety dan, et al., eds., Frontiers in Head and rightly argue in the legislative Administration (NHTSA), Traffic Safety Neck Trauma: Clinical and Biomedical, arena that adults and adolescents Facts Laws, Motorcycle Helmet Use Laws, IOS Press, 1998, p. 3. need to be protected from their January 2006, available at http://www. 9. The Art of the Motorcycle, New York: nhtsa.dot.gov/staticfiles/DOT/NHTSA/ Guggenheim Museum, 1998, pp. poor judgments about motorcycle Rulemaking/Articles/Associated%20Files/ 205–209, 250; Ross Fuglsang, Motorcy- helmet use. In doing so, public 03%20Motorcycle%20Helmet%20Use. cle Menace: Media Genres and the Con- health officials might well point to pdf, accessed November 22, 2006. struction of a Deviant Culture, unpub- 2. “The Effect of Helmet Law Repeal lished dissertation, University of Iowa, the fact that paternalistic protec- on Motorcycle Fatalities,” NHTSA Tech- 19 97, Chapter 2. tive legislation is part of the warp nical Report, DOT HS 065, December 10. An Inside Look at Outlaw Motorcycle and woof of public health prac- 1986, p. 2; D.F. Preusser, J. H. Hedlund, Gangs (Boulder, Colo: Paladin Press, and R. G. Ulmer, “Evaluation of Motor- 19 92), p. 3, cited in Fuglsang, Chapter 2. tice in America. Certainly, a host cycle Helmet Law Repeal In Arkansas 11. Surface Transportation Part 1, of legislation—from seat belt laws and Texas,” NHTSA, September 2000, Hearing of the House Committee on to increasingly restrictive tobacco pp. 43–48. The 47 state statutes Public Works and Transportation, July marked the high water point for manda- 9–31, 1975, H 641–5, p. 368. measures—is aimed at protecting tory helmet legislation, reached between 12. David D. Rutstein, “At the Turn of the people from self-imposed in- September 1, 1975, and May 1, 1976. the Next Century,” in John H. Knowles, juries and avoidable harm. They do not include Utah, which in the ed., Hospitals, Doctors, and the Public In- 1970s required helmets only on roads terest, Cambridge, Mass: Harvard Univer- With the latest round of helmet with a 35 mph or higher speed limit. sity Press, 1965, p. 311. law repeals, motorcycle helmet 3. States with Primary Safety Belt Laws 13. Marc Lalonde, A New Perspective use has dropped precipitately to in 2004, States with Secondary Safety on the Health of Canadians; A Working Belts, NHTSA website, available at http:// Document, Ottawa, Canada. Department 58% nationwide, and fatalities www.nhtsa.dot.gov/people/outreach/ of National Health and Welfare, 1974; have risen.62 Need anything more state_laws-belts05/safetylaws-states.htm, Institute of Medicine (US), Healthy Peo- be said to show that motorcyclists accessed October 20, 2006; Fatality Re- ple: The Surgeon General’s Report On duction by Air Bags: Analyses of Accident Health Promotion And Disease Preven- have not been able to make Data Through Early 1996, NHTSA Re- tion, DHEW (PHS) publication; no. sound safety decisions on their port No. DOT HS 808 470, August 79-55071A, US Government Printing own and that mandatory helmet 1996, available at http://www.nhtsa.dot. Office, 1979; John H. Knowles, “The re- gov/cars/rules/regrev/evaluate/808470. sponsibility of the individual,” Daedalus, laws are needed to ensure their html, accessed October 20, 2006. 1977 Winter; 57–80. own safety? ■ 4. “Thailand: Effect of a Mandatory 14 . “Compliance with the 1992

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California Motorcycle Helmet Use Law,” www.bartleby.com/130/index.html. Ac- 39. “Highway Panel Seeks Required Journal of Health Politics, Policy and Law, American Journal of Public Health, 85 cessed December 17, 2006. Helmet Use by Motorcycle Riders,” Wall 8 (1983): 76–98. (1995): 96. 24. Simon v. Sargent, supra, at 279. Street Journal, January 12, 1979, p. 8; Pe- 47.G.C. Nurchi, P. Golino, F. Floris. et 15. Emma E. Pullen, “State Faces Loss 25. Bogue v. Faircloth, 316 F. Supp. 486 terson, July 31, 1978, p. NJ11; Ernest al., “Effect of the law on compulsory hel- of U.S. Road Funds,” Los Angeles Times, (1970) at 489. Holsendolph, “U.S. Safety Chief Urges mets in the incidence of head injuries August 5, 1975, p. B3. 26. “The History of the AMA,” Ameri- Helmets to Cut Deaths of Motorcyclists,” among motorcyclists,” Journal of Neuro- 16. James Quinn, “Cyclists Take Aim at can Motorcylist Association, available at New York Times, January 12, 1979, p. surgical Science, 31 (1987): 141–143. Proposed Helmet Law,” Los Angeles http://www.amadirectlink.com/whatis/hi A12; “Evaluation of Motorcycle Helmet 48. National Highway Fatality and In- Times, September 16, 1973, p. GB1; story.asp. Accessed December 17, 2006. Law Repeal in Arkansas and Texas,” jury Reduction Act of 1989, Hearing “Motorcycle Helmet Proposal Withdrawn 27.Fuglsang, Chapter 7, available at NHTSA, pp. 45–48. before the Subcommittee on Water Re- By Councilman,” Los Angeles Times, Sep- http://webs.morningside.edu/masscomm/ 40. “The Motorcyclist as Gladiator,” sources, Transportation, and Infrastruc- tember 23, 1973. DrRoss/Research.html. Accessed Decem- North Carolina Medical Journal, (1979): ture of the Committee on Environment 362–364. and Public Works, United States Senate, 17. State appeals or supreme courts ber 17, 2006. 101st Congress, First Session, on S. 1007, have found mandatory motorcycle hel- 28. “Street Legal Chopper, Circa 41. Susan P. Baker, MPH, “On Lobbies, A Bill to Amend Title 23, United States met laws to be a constitutional exercise 1973?” Easyriders, October 1971, avail- Liberty, and the Public Good,” American Code, Regarding the Reduction in Appor- of police power in: Love v. Bell, 171 able at http://www.abateonline.org/ Journal of Public Health, 70 (1980): 573. tionment for Federal-Aid Highway Funds Colo. 27, 465 P. 2d 118 (Colo. 1970); ABATE.aspx?PID-240. Accessed De- 42. Richard J. Perkins, “Perspective on to Certain States, and for Other Purposes, Hawaii v. Lee, 51 Haw. 516, 465 P. 2d cember 17, 2006. Also see Fuglsang, the Public Good,” American Journal of October 17, 1989, p. 8; Laszlo Dosa, 573 (Hawaii 1970); Missouri v. Cush- Motorcycle Menace, Chapter 7. Public Health, 71 (1981): 294–295. “Worried About Dying? Worry About man, 451 S.W. 2d 17 (Mo. 1970); North 29.“ABATE Membership in 44 States 43. Baker and Stephen P. Teret, JD, Accidents,” The Washington Post, June 13, Carolina v. Anderson, 275 N.C. 168, Have Started Working Toward Our MPH, “Freedom and Protection: A Bal- 1989, p. Z5; Robert Greene, “Cyclists, 16 6 S.E. 2d 49 (1969); New Jersey v. Freedom of the Road,” Easyriders, Feb- ancing of Interests,” American Journal of Officials Oppose Bill Tying Road Aid to Krammes, 105 N.J. Super. 345, 252 A. ruary 1972, available at: http://www. Public Health, 71 (1981): 295–296. Helmet, Belt Laws,” Associated Press, Oc- 2d 223 (1969); North Dakota v. bikerrogue.com/articles/biker_rights/ 44. Geoffrey Watson, Paul Zador, and tober 17, 1989, Tuesday AM Cycle. Odegaard, 165 N.W. 2d 677 (N.D. history_of_abate/history_of_abate.htm. Alan Wilks, “The Repeal of Helmet Use 1969); Ohio v. Craig, 19 Ohio App. 2d Accessed October 20, 2006. Also see Laws and Increased Motorcyclist Mortal- 49. Dosa, “Worried About Dying?” 29, 249 N.E. 2d 75 (1969); Oregon v. Fuglsang, Motorcycle Menace, Chapter 7. ity in the United States, 1975–1978,” p. Z5; Hearings, pp. 14, 58. Fetterly, 254 Ore. 47, 456 P. 2d 996 30. Modified Motorcycle Organization American Journal of Public Health, 70 50. 1989 Hearing, pp. 6–7. (Ore. 1969); Arutanoff v. Metro Govern- of California, available at http://www. (1980): 579–584 (nearly 40 percent in- 51.1989 Hearing, p. 18. ment of Nashville and Davidson County, mmaweb.org/index.html. Accessed crease in fatal motorcycle injuries in states 52. 1989 Hearing, pp. 18–19. 223 Tenn. 535, 448 S.W. 2d 408 November 22, 2006. Marcida Dodson, that repealed helmet laws, 1975–1978); 53. 1989 Hearing, pp. 70–71. (Tenn. 1969); Ex parte Smith, 441 S.W. “Bikers Find No Vroom to Be Alone,” Norman E. McSwain, Jr, and Elaine Petru- 54. “Highway Safety Motorcycle Hel- 2d 544 (Tex. Cr. App. 1969); Vermont Los Angeles Times, May 21, 1981, celli, “Medical Consequences of Motorcy- met Laws Save Lives and Reduce Costs v. Solomon, 128 Vt. 197, 260 A. 2d p. OC-A1. Surface Transportation Part 1, cle Helmet Nonusage,” Journal of Trauma, to Society,” GAO Report RCED-91-170, 377 (Vt. 1969); Washington v. Laitinen, Hearing of the House Committee on 19 (1987): 233–236 (Colorado, Kansas, July 29, 1991, pp. 2–5. 77 Wash. 2d 130, 459 P. 2d 789 Public Works and Transportation, July Oklahoma, South Dakota analyzed; signif- 55. Wayne T. Curtin, MRF Vice Presi- (Wash. 1969); Bisenius v. Karns, 42 9–31, 1975, H 641–5, p. 454. icant increase in injury and death and up dent for Government Relations, Wis. 2d 42, 165 N.W. 2d 377 (1969); 31.For more on the more activist poli- to 200% increase in medical costs); Don- “Focus + Unity = Repeal of Federal Hel- Overheard v. City of New Orleans, 253 cymaking role of Congress during the ald J. Scholten, John L. Glober, “Increased met Law,” Motorcycle Riders Foundation La. 285, 217 So. 2d 400 (1969); Com. Ford administration, see Thomas E. Mortality Following Repeal of Mandatory White Paper, September 1996, available v. Howie, 354 Mass. 769, 238 N.E. 2d Cronin, “A Resurgent Congress and the Motorcycle Helmet Law,” Indiana Medi- at http://www.mrf.org/pdf/whitepapers/ 373 (Mass. 1968). State appeals or high Imperial Presidency,” Political Science cine, (1984) 252–255 (36.9 percent in- volume4-1996/repealoffederalhelmetla. courts have found mandatory motorcy- Quarterly, 95 (1980): 209–237. crease in death rate); Thomas C. Chenier pdf. Accessed October 20, 2006. cle helmet laws to be unconstitutional 32. Surface Transportation Part 1, p. and Leonard Evans, “Motorcyclist Fatali- 56. Katherine Bishop, “California’s Hel- in People v. Fries, 42 Ill. 2d 446, 250 401. ties and the Repeal of Mandatory Helmet metless Ride is Over, but Not the Debate,” N.E. 2d 149 (1969) and American Mo- 33. Davey testimony, Surface Trans- Wearing Laws,” Accident Analysis and New York Times, January 1, 1992, p. 8. torcycle Association v. Department of portation Part 1, p. 373. Prevention, 19 (1987): 133–139; Linda E. 57. David Hess, Knight-Ridder Tribune State Police, Docket No. 4,445, Court of 34. ABATE of Washington, available at Lloyd, Mary Lauderdale, Thomas G. Betz, News, “Leverage on budget goes to Re- Appeals of Michigan, 11 Mich. App. http://www.abate-wa.org/aboutus.htm. “Motorcycle Deaths and Injuries in Texas: publicans; Clinton’s concessions frustrate 351; 158 N.W. 2d 72. Accessed December 17, 2006. Helmets Make a Difference,” Texas Medi- Dems,” The Houston Chronicle, December 18. Simon v. Sargent, 346 F. Supp. 277; 35. Surface Transportation, Part I, pp. cine, 83 (1987): 30–35 (more than 2, 1995, p. 19. Appeal, 409 U.S. 1020; 93 S. Ct. 463 387–390, p. 456–460. 1,000 excess deaths from helmet 58. Preusser, et al., “Evaluation of Mo- (1972). In Bogue v. Faircloth, 316 F. 36. David Young, “State to Present Case nonusage in Texas; nonhelmeted riders torcycle Helmet Law Repeal in Arkansas Supp. 486 (1970) brought in the United on Cycle Helmet Ruling,” Chicago Tri- more likely to be uninsured); Leonard and Texas.” States District Court for the Southern bune, September 29, 1975, p. B10; “Sen- Evans and Michael C. Frick, “Helmet Ef- 59. “Deaths Up Since Florida Helmet District of Florida, the appellants, also ate Votes Reprieve for States Lacking fectiveness in Preventing Motorcycle Dri- Law Repealed,” Associated Press, August motorcyclists who had been arrested Motorcycle Helmet Law,” Los Angeles ver and Passenger Fatalities,” Accident 10, 2005, available at http://www. under a state’s helmet law, alleged a vio- Times, December 13, 1975, p. B10; Analysis and Prevention, 20 (1988): msnbc.msn.com/id/1341966. Accessed lation of their federal civil rights. “Ford Signs Extension of Highway Aid,” 447–458 (NHTSA Fatal Accident Re- October 20, 2006. Los Angeles Times, May 6, 1976, p. B14. porting System analysis found helmets 60.Ken Ray, Legislative Director, 19. People v. Fries, 42 Ill. 2d at 450. Dennis V Cookro, MD, MPH, “Motorcy- [28% ±8%] effective in preventing BikePAC of Oregon, “The Giant Sucking 20. American Motorcycle Association v. cle Safety: An Epidemiologic View,” Ari- fatalities). Sound,” Motorcycle Riders Foundation, Department of State Police, supra. zona Medicine, August 1979, pp. 605. 45. Raj K Narayan, “How Many Deaths September 1998 White Papers, available 21. American Motorcycle Association v. 37. “Law eased, cycle deaths soar,” Will It Take?” Texas Medicine, 83 (1987): at http://www.mrf.org/pdf/whitepapers/ Department of State Police, supra, at 357. Chicago Tribune, September 7, 1978, p. 5–6. volume5-1998/thegiantsuckingsound. 22. Simon v. Sargent, supra, at 278. W_A4. 46. Nelson S. Hartunian, Charles N. pdf. Accessed October 20, 2006. 23. Mill, John Stuart, On Liberty, Chap- 38.Peterson, “Motorcyclists, Helmeted Smart, Thomas R. Willemain, Paul L. 61.NHTSA, “Traffic Safety Facts Laws, ter 1, Introductory, London: Longman, or Not, Fight Restriction,” New York Zador, “The Economics of Safety Dereg- Motorcycle Helmet Use Laws,” January Roberts and Green, 1869; New York: Times, July 31, 1978, p. NJ11, citing ulation: Lives and Dollars Lost due to 2006. Bartleby.Com, 1999, available at http:// Claybrook. Repeal of Motorcycle Helmet Laws,” 62. Ibid.

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