I agree with Paul Krugman about masking, but he’s wrong about public urination, and wrong to use the laws against it as an analogue of the laws requiring masking in the COVID-19 pandemic:
Relieving yourself in public is illegal in every state. I assume that few readers are surprised to hear this; I also assume that many readers wonder why I feel the need to bring up this distasteful subject. But bear with me: There’s a moral here, and it’s one that has disturbing implications for our nation’s future.
Although we take these restrictions for granted, they can sometimes be inconvenient, as anyone out and about after having had too many cups of coffee can attest. But the inconvenience is trivial, and the case for such rules is compelling, both in terms of protecting public health and as a way to avoid causing public offense. And as far as I know there aren’t angry political activists, let alone armed protesters, demanding the right to do their business wherever they want.
Laws against public urination do not impose a merely trivial inconvenience. If someone has a medical condition that involves urinary frequency or urgency, and there are no public bathrooms available (as often there aren’t), discreet “public” urination becomes unavoidable. Likewise if someone is homeless.
Public elimination may cause offense and public health issues in urban areas, but need not do either thing if done discreetly in suburban or rural areas. And with respect to public offense, I would ask: why is public elimination so much more offensive when done by humans than when done, say, by dogs? How is it that we take “dog walking” (a euphemism for “dog pissing and shitting on other people’s property”) so utterly for granted while heaping shame, opprobrium, and legal penalties on people who can’t find a bathroom in a society that makes them so scarce?
Krugman’s description of the issue is tendentious.
And as far as I know there aren’t angry political activists, let alone armed protesters, demanding the right to do their business wherever they want.
The point is not that public elimination should be done wherever or whenever one wants. That’s a fallacy of false alternatives. The issue is whether there are good reasons for easing or eliminating the penalties for public elimination in clear cases of duress or necessity. I think it’s nearly self-evident that there are, but neither law enforcement nor the courts are sympathetic to such claims, as Krugman’s own source makes clear (read this link, cited in his article, and discussed below).
Nor am I taking a sanctimonious attitude on the provision of public bathrooms. I understand why they’re so scarce: public bathrooms are notoriously abused, and once abused, hard to clean. Few people, even among professional janitors, can be hired to clean them. And we pay those who do a shit wage, if you don’t mind the pun. I would know, since it’s what I do for a living.*
So I’m personally acquainted with the trade-off involved. That said, I would rather that there be more public bathrooms to clean than more public elimination (or a needlessly severe stance against violators), even if I have to be the person to clean them (for a shit wage). More public bathrooms are probably too much to ask, however. If we’re going to skimp on public bathrooms, as I guess we are, we can’t legitimately adopt a Javert-like posture on public elimination. Either we provide for people’s needs, or we accept the fact that they’ll be forced to take the necessary measures to satisfy them. Alas, asking the impossible and then penalizing people for their failure to deliver seems to be a special fetish of our culture. So don’t expect a reasonable solution any time soon.
Krugman cites this very typical passage from an online essay by a lawyer who takes herself to be explaining the subject to the uninitiated:
Laws prohibiting public urination may be relevant to drunk and carousing college students, but other than that, they rarely affect those who are adequately dressed, fed, and housed. The majority of the population is never painfully far away from restroom facilities, and even if they need to use restrooms that are “for customers’ use only,” they can usually walk right in, without fear of being stopped.
Utter bullshit from beginning to end. First of all, “rarely affect” doesn’t entail “doesn’t affect,” does it? What about the cases in which someone is affected? Second, the categories of “drunk and carousing college students and “the adequately dressed, fed, and housed” aren’t exhaustive. What about the people who fall outside both? “The majority of the population” doesn’t include the minority. Are minorities unimportant? Further, isn’t it illegal to “walk right in” to an establishment that says that bathrooms are for paying customers only (when you aren’t a paying customer and don’t intend to be)? So is this lawyer advocating criminal trespass? Seems like she is. In quoting this author, Krugman appears unaware of the fact that many public bathrooms have been closed down during the pandemic. That’s bad enough, but the problem precedes the pandemic.**
Incredibly, Krugman’s legal source mentions homelessness, but doesn’t mention a single medical condition that might give rise to a valid claim of necessity. Apparently, in her legal universe, such conditions don’t exist. And yet they do. Can a person write on this subject and be that ignorant of the basics? Yes, she can–if she’s a lawyer. Leave it to a lawyer to cloak egregious medical ignorance in a misleading veneer of knowledgeable sophistication (often for a fee of several hundred dollars an hour). And even the necessity defense available to the homeless is described without comment on its transparent absurdity. I won’t quote it here (I have my limits with lawyerly obtuseness), but what homeless person would be able to satisfy the burden of proof described in the third section of the article?
People who find the inconvenience involved in laws against public urination trivial, or regard public bathrooms as there for the asking, live a life of privilege they’ve never questioned. Not everyone has that luxury. It’s about time–past time–to show some sensitivity for the claims of those who don’t.
*I’m a janitor in the (misleadingly named) operating “room” at Hunterdon Medical Center (Flemington, NJ), but the operating suite includes four public bathrooms–one in the men’s locker room, two in two separate women’s locker rooms, and one in the holding room for patients. We clean all four every night on the evening shift after we’re done cleaning the operating theaters, which are themselves full of blood, iodine, urine, and feces.
**Despite the time he’s spent in New York and New Jersey, Krugman appears ignorant of the fact that public restrooms have long been closed along New Jersey highways since well before the pandemic, that they’re not easy to find on New Jersey Transit, and that they effectively do not exist in most NYCTA subway stations (to say nothing of the subway cars themselves).