I think there’s a distinction being lost in Ross’s latest on the question of prostitution. Arguing that “protecting vulnerable women” is at best a supplemental reason for making prostitution illegal, he says:
laws against prostitution ultimately depend on the assumption that the state has an interest in preventing serious forms of self-abuse, and that renting out your body to satisfy another person’s sexual needs is a form of self-inflicted violence serious enough to merit legal sanction irrespective of why and how you decided to become a prostitute in the first place.
But there are lots of ways to abuse yourself, right? A steady diet of Krispy Kremes would do some serious abuse to your body (or, I should say, the body that is you – in this scheme, the body is not an owned thing that is yours). Not serious enough to warrant legal sanction? Well, gluttony is one of the seven deadlies, right up there with lust. And the medievals did have all sorts of laws regulating consumption. Are we going there? Or pick some other sex examples: I don’t believe Ross approves of legislation against sodomy, masturbation or adultery. But those are all behaviors that are traditionally understood to be “self-abusive” (indeed, what does “self-abuse” traditionally mean?), and the last of them (adultery) isn’t even arguably victimless. Why not ban them? The law can be a moral teacher, after all, even when it’s not aggressively enforced, as Ross himself says.
Why are some forms of paternalism – of which morals legislation form a sub-category – OK and others are insulting to a free people? I don’t think you can get back to an answer that prostitution is the sort of thing we should keep illegal without some argument about the power relations that predominate in the transaction in question. I think you can get to a position against legalizing prostitution from feminist premises or from traditionalist premises, but either way you’re having a discussion about women and their power or lack of it in this kind of transaction. (The discussion doesn’t have to revolve around the sexes of course; I don’t think you can get at an argument for keeping gambling or drugs illegal without discussion their exploitative characteristics, and talking about addiction.)
The underlying assumption cannot be that categorically we need to be protected from self-abuse. We’re free adults, after all; the state’s assumption should be that, all else being equal, we are capable of protecting ourselves from ourselves. Ross says, “we don’t make it illegal for poor women to work unpleasant jobs cleaning houses or serving food at McDonalds,” but that’s because we don’t consider those jobs to be fundamentally degrading, and we don’t (contra Marx) consider the wage labor system to be essentially exploitative. If we did, then yes, we would have to take some such action.
(It’s also worth noting that while contemporary libertarians like to attack morals legislation as neo-Victorian, back in actual Victorian Britain, prostitution was legal, and the ideological basis for legalized and regulated prostitution was explicitly anti-feminist, as Josephine Butler understood.)