Ep. 301: Is Abortion Morally Permissible? (Part One)

0:00 Mark: Foreign. You're listening to the Partially Examined Life, a podcast by some guys who are at one point set on doing philosophy for a living, but then thought better of it. Our question for season two, episode one. No, it's. It's just episode 301 is something like, is abortion morally permissible? We looked at widely anthologized papers on this topic by Judith Jarvis Thomson, Mary Anne Warren and Don Marquis, plus a bit of the text of Roe v. Wade. For more information, please visit partiallyexaminelife.com this is Mark Linsenmayer, a person plant, who is hereby claiming a right to your home.

0:41 Seth: In Madison, Wisconsin, this is Seth Paskin with a future like yours In Austin,

0:47 Wes: Texas, this is Wes Alwan, looking forward to a future like mine. In Cambridge, Massachusetts, this is Dylan Casey,

0:54 Dylan: considering whether I am an acorn or an oak tree in Madison, Wisconsin.

0:59 Mark: Welcome to the new century. I'm gonna keep saying that century. We're past. We're past episode 301 until you come up with a better way of counting hundreds. Ah, the new batch of hundred episodes. It's not a century. I understand, but I need a new word. This is something. Is it the first class we ever ta'd, Wes? Contemporary Moral Problems?

1:24 Wes: Probably. I think I TA'd it multiple times.

1:28 Mark: Yeah, me too. For sure.

1:30 Wes: Yeah.

1:30 Mark: It is often the first philosophy course anyone will take. I don't think we had a stricture against doing a strictly practical problem like this, but we just never did. I can't think of another one that has been this cut and dry and just look up any syllabi for what people are offering to freshmen and this will come up. So.

1:50 Wes: And we did exactly these papers. I remember them.

1:52 Mark: I. I believe so. I don't remember the Marquis. Maybe they change, which is the Pro Life paper in various anthologies. But for sure, these two, the Judith Jarvis Thomson and the Mary Anne Warren, are from the early 70s.

2:06 Wes: In this class we also did so we did abortion, homosexuality, euthanasia, death penalty. What else? Do you remember what other issues were?

2:15 Mark: I don't know. Seth, did you ever teach this as well?

2:18 Wes: He must have, unless he got special treatment.

2:21 Seth: No, I had logic.

2:22 Wes: Well, I did that too.

2:24 Seth: I mean, I'm sure I did this one. I just don't have any strong recollection of it.

2:28 Mark: And Dylan as a saint, Johnny, you guys didn't do anything like this, right? Nothing practical, or am I wrong?

2:33 Wes: Plato didn't write about this.

2:34 Mark: I think Aquinas apparently did.

2:38 Dylan: He really?

2:39 Wes: Okay.

2:39 Mark: Oh, yeah.

2:40 Dylan: You know, a lot of the question of personhood I think would effectively come up, but in a more general way. I could imagine somebody doing a preceptorial on contemporary moral problems. I never did one.

2:52 Mark: And the way they make this appealing and effective for people that don't know any philosophy is to try to bypass all the difficult meta ethical problems and just say these are things that even in these papers like. Whatever your position on these larger issues, we'll all agree that killing adults is wrong. Part of what makes it practical is not just the practical subject matter, the practical way in which it is argued of just working from common assumptions rather than getting at some bedrock. Well, we're all utilitarians, right? We're all consequentialists.

That would be a much more difficult thing. However, we, unlike when I approached this so many years ago, that's actually where it got interesting to me because you can't avoid. Once you start talking about personhood, then you're like, why do we think personhood is the central concept in morality and reason versus emotion? You know, these things have come up time and again in episodes for us. What are the foundations for morality? So I did find it really interesting from that perspective and also just there's a reason why these are so widely anthologized, Even the pro-life one.

Anything that's included in one of these is not just going to be a have faith. It's not going to be an explicitly religious argument. It's going to be a translation into secular terms that again, an average undergraduate student, whatever their religious background is supposedly going to at least find compelling. So they lay out, try to be as clear arguments as possible, inviting you to just walk down the list of premises and then they're responding to each other. So I don't know. I found it as serious and distressing a topic. This is. This was a fun nostalgic exercise for me.

Looking back at these.

4:24 Wes: Marquis, by the way, does give an argument as to why killing is wrong. So you're right that most of the literature, I think, sidesteps that issue. Did you guys read the Stanford article on moral status? I forgot if we like officially signed that, so I thought we did, but

4:40 Mark: I just forgot there was enough to read.

4:42 Wes: The bulk of that article is looking at what moral status. Moral status as in potentially personhood. But it could be something else. It could be whatever it is that grounds treating entities as if they have rights or can't just be killed on

4:59 Dylan: a whim or have to be included in the moral community.

5:03 Wes: Yeah, so the article spends a lot of time on saying what moral status is and what grounds it, does it have something to do with cognitive capacities? And a lot of that conversation is around purpose, personhood, Right. And the old question of what it means to be a person. And, you know, is it about rationality, is it about self consciousness, et cetera, et cetera. And then in the end, it has a very short section on justifying the grounds of moral status. Like, so even if we've successfully said what the grounds are and what a person is, then we still are left with the question of why.

And for that, we have to go to Kant or we have to go to utilitarianism. Right. Just for listeners to recall, the Kantian argument is just that value in general is grounded in autonomy, where autonomy is the capacity to choose ends from reason. So it's like, if anything is valuable, it has to be grounded in that. And so that's an example of the kind of very, very abstract justification that we might get for why we would have to treat persons in a certain way or other. But Marquis is interesting because he sort of sidesteps the concept of personhood and tries to tell us why killing is wrong.

6:15 Mark: Just an FYI, I specifically pulled up a video just so I could see how to pronounce his name, and it is Marquis.

6:20 Wes: It's Marquis. Okay.

6:21 Mark: Yeah, but you wouldn't know. Seth, Dylan, any more opening remarks. What is the central thing? What did you actually find interesting in any of this, if anything?

6:29 Seth: Well, what I found interesting is what we didn't read. It's been many, many, many years since I read the Roe v. Wade decision. And I remember at the time reading it thinking it was a terrible decision. Then, Wes, I remember you saying you thought it was really good. So reading it again, I don't think this was the full excerpt.

6:47 Mark: It's like hundreds of pages, but this is like 10 pages, including some of the dissent.

6:51 Seth: Yeah, but what I'm curious about is I didn't have the time to go figure out what this, I'll hesitate to call it as current court, this clown car full of ideologues, what they objected to and what grounds, because ultimately the decision talks about the right to privacy versus the state's interest in protecting or having some interest in the health of the woman and the fetus. And so I'm curious on what grounds it was overturned because I didn't read the legal decision, and whether there's still questions of privacy or what is the legal issue at point here, because the decision really says something to the effect of it leaves it up to the technology of the time.

So it says something to the effect of in the first trimester, the risk to the health of the woman is greater than a normal pregnancy. So there's some justification that she has a right to privacy and making a decision relative to that. But after that there's no additional risk. And somehow that promotes the state's interest.

8:00 Mark: I think you just switched that. I think it's that it is safer, supposedly an abortion in the first trimester than childbirth would be. Whereas at least at the time that the medical technology at the time or whatever, supposedly abortion gets more dangerous later. And so states may. May, because of the concerns about the health of the mother, regulate.

8:24 Seth: Right. I'm sorry. Yes.

8:25 Wes: So the current decision overturns Roe versus Wade, but it doesn't challenge that sort of reasoning. And we're going to do a future episode relevant to the most recent decision on this, because the most recent decision just says the Supreme Court doesn't really have jurisdiction over this. It's a decision for the legislatures because there is no right to abortion explicitly mentioned in the Constitution and it's not really grounded in the Constitution. So the Supreme Court can't really set the policy on that, so to speak. And that we have to let the legislatures do that, which I suspect is a flawed argument.

I think Roe does claim that the Supreme Court has something. The right to abortion is grounded in the Constitution, and I suspect that's actually right, even though that's something Roe vs. Wade is often criticized for, for sort of extracting the right to abortion from a bunch of different rights, which looks fishy and looks abstract and complicated, but I think it's exactly what the Supreme

9:23 Dylan: Court has to do in Roe. They derive the right to choose from the right to privacy, and they ground the right to privacy in the 14th amendment mainly with some allusion to the 1st, 5th and the 9th, but it's mainly the 14th.

9:37 Mark: Yeah, because those are just things that other courts in the past had used to ground a right of privacy. And I'm sure in the long decision they'd say exactly what those are. I don't know how to second guess that kind of case law.

9:47 Dylan: I'm not trying to second guess the case law. I'm just underlining Wes's summary that the current decision overturns Roe by basically saying that the right to privacy does not extend to abortion because it's not mentioned in the Constitution. And there's also the question, I haven't read the most recent decision, but maybe going so far as to say the right to privacy as currently understood in a variety of ways that has been in the past 50 years, rooted in the 14th Amendment, does not also extend right. And so there has been comments by Thomas to that effect that a whole bunch of rights to privacy would get undermined by the argument in the current decision.

10:32 Wes: What the ninth Amendment says, and this is just. I think we should move on from this because it's not really the subject for today. But what the ninth Amendment says is just that. Just because we didn't enumerate the right in the Constitution doesn't mean it isn't right. And then the question is whether unenumerated rights, whether the Supreme Court or the judiciary, can defend those against the tyranny of the majority right and the legislature. And that's what we're going to explore in a future episode. But today's episode, we're going to address the ethics of abortion, which is relevant, right?

It's not relevant to the current decision, but it is relevant to Roe versus Wade, because once they decide that there's a right to privacy or that the woman's rights are involved in abortion and the Supreme Court has something to say about that, then they have to think about the counterargument concerning the moral status of the fetus and whether there is any, and then to what extent and whether that outweighs in some circumstances the rights of the woman. So it becomes a much more complicated issue once you just grant that the Supreme Court, I think jurisdiction is probably not the right word, but is legitimately party to the argument.

11:40 Mark: But yeah, I feel like Seth was giving us the two part story of Roe v. Wade and we jumped on him when he misstated the first part and then have been talking since then. Seth, do you want to give the second half of the story?

11:50 Seth: I thought the decision was. It was good to read it. I don't understand enough about the legalities. It strikes me that what I think Dylan said, this was where my mind went, was that if there's no right to privacy here and the state has an interest, doesn't mean the state's interest is in mandating that the woman carry the baby to term or whatever. You know, it's like, okay, if the state has an interest, then maybe the state needs to have facilities and technology to recover the embryos and raise them themselves or find surrogates for them or something like that.

The problem is, I'm just. This is too much of a emotional issue for me and I thought all the essays we read were clear and well argued. You know, whether we can dispute the premises and so forth. But I think the arguments are relatively sound. I don't know what I'm going to reasonably contribute to this conversation. That's not going to make me violently upset.

12:44 Mark: Well, stay tuned to see Seth violently upset because you're on board, buddy.

12:50 Wes: I think we give it just a very quick, before we move on to the other essays, just a quick idea of what Roe is saying. It's kind of an interesting thing because the Constitution uses the word person several times and then who decides what a person is? It's a complicated metaphysical. I think they use that word question, especially with regard to a fetus. And in the case of a fetus, I think they say it's basically undecidable. So the idea is that the one thing we could agree on is by the time a child is born, we're willing to treat that as a person for the sake of the law and early on our intuition that is that a clump of cells is not very much like a person.

And it's a gradual development and it's not perfect. But we have to make certain divisions regarding the regulation of abortion. We'll have to set some dividing lines. So they develop a trimester system where the big dividing line is the dividing line of viability. So at the time around six months. Right. Where the idea is if a fetus can survive outside of the womb, then we can presume, not necessarily that some states could allow abortion anyway in the third trimester, but the state could have an interest. You know, in a way, they're leaving part of the question up to the states.

Right. It's like state legislatures. You're going to have to decide whether in the third trimester you think the fetus is a person. But we're going to let you make that decision. We're not going to say that you have to decide that it isn't. So they do leave it up to state legislatures. They just leave it up to state legislatures in the third trimester. And basically in the first two trimesters

14:27 Dylan: it's an individual right.

14:29 Wes: Say the women's rights override that. And state legislatures can't interfere with that. They can interfere with, you know, in the second trimester they can say you have to do it at a certain facility with someone who's actually a doctor. And, you know, you can regulate for the health of the woman.

14:45 Mark: From what I recall of the lectures in the courses that we were TAs or graders or whatever for originally was why this is a bad decision, not because it's not rooted in The Constitution, they weren't second guessing the case law, but because of the flexibility, according you were saying, Seth, that it was sort of left up to the technology at the time. And that's absolutely right. They said the division between the first trimester, when states have no right to regulate at all, it's just up to the woman and her doctor. In fact, they just talked about the doctor. They say it's a medical decision. They don't actually even in Roe talk about the woman's choice at all.

15:17 Wes: Is that I don't even think it has to be a doctor.

15:20 Seth: Right.

15:20 Mark: It says a physician. But in any case, so the quickening, that's the place that they keep saying, oh, this is often brought up so that when the fetus starts to move that that starts to happen around, you know, somewhere right in there. And importantly, that was, as Seth pointed out, the place where supposedly abortion became more dangerous for the mother. So if it's not going to be dangerous for the mother, that is the only possible thing that's at play in the first trimester. So you can't regulate it at all in the second trimester. Maybe it is more dangerous for the mother.

Clearly this is something that changes with time. So this division between before this point the state can intervene, but after this point the state can intervene because it's more dangerous for the mother. That's now way later, like maybe abortion even in the eighth month. I don't know exactly how the science has progressed, but at least even at the time, you know, 20 some years ago when we were learning about this, they were saying like already that's super out of date as compared to 1971, that late abortions are much, much safer. So there really should be no justification on this logic for the state to intervene regulatorily pretty much at all, other than just like saying an actual doctor should do it.

You know, they can do stuff like they would do about any medical procedure.

16:32 Wes: Well, that's basically what they can do in the second trimester is they can define the location to define the licensure of the person doing it from my understanding. But I.

16:40 Mark: Okay, so even the first one they can't.

16:43 Wes: Yeah, I think so. I may might be wrong about that. That's my understanding. We have two kind of brief and excerpts here to really settle some of these. So it's unclear, but that's what I thought. But I think one of the virtues of the decision is it is the fact that it's going to say, look, yes, these things are going to change with time, but we're going to draw these dividing lines anyway. I think that's actually a virtue. Yes, it's somewhat arbitrary to use a trimester system, but we don't have the option of not doing that if we want to define a right grounded in the right to privacy.

So an example of on page 95, we need not resolve the difficult question of when life begins. This isn't about quickening and the safety of the mother, but this is, you know, about the right. This is about the person. Second question. But yeah, we need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus. The judiciary at this point in the development of man's knowledge is not in a position to speculate as to the answer.

So this, I think, is actually a strength. It's willing to say either the question is unknowable or it's indeterminate. So it embraces a sort of.

17:51 Mark: Well, it's undecidable by us as judges. Now. It's not saying. No one saying we're just. If they can't figure it out, we're not going to.

17:59 Wes: I think we haven't figured it out yet as philosophers. It's not something that's ever going to be a settled question. You know, the question of moral status and personhood and all that stuff is never going to be like any other philosophical question. It's like, oh, we answered that. Now put the answer in the Stanford Encyclopedia. Philosophy. We don't need to talk about that anymore. It's always going to be a subject of debate and that's a virtue of the decision. It says we're not going to decide that debate. But we can still make some decisions about this anyway and acknowledge the fact that early on, most people's intuitions do not support the idea that a fertilized cell as a person.

Some do, right? Some people, for religious or other metaphysical reasons are going to think that conception means personhood. But in most cases, our intuitions don't support that. And regardless of that undecidable question, at the very least a newborn, for the sake of argument, we're going to assume that's a person and we're going to assume that the development in that direction is development toward personhood, which means viability. Intuitively, you can see the argument here. Viability conceivably could be an argument for regulation in the third trimester.

That part has left up the states.

19:12 Mark: So just to complete the thought of why it's not just now abortions later are safer, but viability earlier is now possible. So at the point that this was written, maybe viability really was at six months. But now at least some of our articles allege. One of these articles I was looking at that was even at the time was that basically with test tube babies, viability could be you don't even need a womb. So you would imagine as technology progresses that maybe you go for an abortion at two months and they say, well, we'll take that out of you. You don't have to take care of it. The pro life society has pitched in all this money that we're going to take it and put it in a tank and we will grow it the rest of the way and it will be adopted. And like that is not crazy science.

19:57 Wes: Well, if they can incubate it in a machine, but that still would be. All things would be equal in that case. Right. Going to have an abort abortion would just mean the removal instead of the destruction. Right. One of the authors of our philosophical papers brings that up. I think it's Thomson who's right defending abortion, says that well, if you could remove it without destroying it, fine. If someone wants it, take it. Dr. You know, pro life people want to set up incubators and you an abortion means just someone's gonna harvest it from you as opposed to destroying it, so be it.

20:27 Dylan: She argues explicitly against the abortion is the ending of the pregnancy as opposed to the ending of the life. The ending of the child explicitly argues that there isn't a right to not be the genetic parent of that progeny.

20:45 Wes: Right. You don't have the right to destroy, destroy the progeny. Yeah, yeah. You have the right to terminate the pregnancy. And the destruction just happens to be, given current technology, destruction happens to be the result of that, but it might not be in the future.

21:00 Dylan: Just to be clear, test tube babies does not refer to growing babies in a test tube in an artifact. That's not what that refers to.

21:08 Mark: In some sci fi properties it is.

21:11 Dylan: Okay, okay. And the earliest viability I've heard of is just short of 24 weeks.

21:20 Wes: Yeah, I think Mark's right. At some point in the future we are going to have the technology to take it out at any point and grow it in a machine in an artificial womb. That kind of doesn't matter. And that's what Roe versus Wade realizes. They really only have to address the viability, the current viability. It's an arbitrary decision in a way, but it's based on non arbitrary realities.

21:42 Dylan: And viability is the Fulcrum of personhood in that. Yeah, that's the line that they said. This is intuitively clear enough.

21:52 Wes: Well, might be.

21:53 Dylan: They're drawing that line that's absolutely clear. Whether they're saying that it's absolutely certain that that's the line of personhood, they're not taking a stand on that. They're drawing a practical line.

22:02 Mark: The language that is used is this is where the interest in protecting potential life kicks in. So potential life. Now, that's the other big metaphysical issue that we have to deal with here.

22:13 Wes: Yes, but the state is not required to do that. The Supreme Court is not saying, yes, it's a person in the third trimester, therefore, states have to outlaw it. The state can decide that it's not a person in the third trimester. The idea is just that the state might decide that it's a person in the third trimester. It's not a completely crazy idea to make that decision. And so it's a very. I mean, as Dylan is saying, it's a very practical, pragmatic decision. And what the emphasis. I'm putting the emphasis on the fact that it's refusing to try to make a decision about the philosophical stuff, it's leaving that up to legislatures.

Well, it is and it isn't. It's complicated, but you know what I'm saying, It doesn't try to give a definitive answer to those things, but it does its best with what it has. So it's an example of a decision that is really modest in a way, and very reasonable and very well written and interesting. It has a lot of. There's a ton of virtues I wish people knew that. Most people haven't read it. And if you look at the discourse online, even on the left, it's full of all these criticisms, and I think many. They're unwarranted.

23:17 Mark: Maybe we should map out, before we kind of get into detail with some of these articles, what the three main arguments that we are considering here. I mean, you think there's only two sides, so there's actually a fourth. Another pro life article that I had made optional, but that, apart from its abstract, was not really worth our time to read. It's John T. Noonan's An Almost Absolute Value in History. And that is just putting out the. Our starting point, which is that if pro life people say that being genetically human, that's being the offspring of a mother and father, that is humanity.

And humanity is the thing that we're trying to defend when we make moral claims is the core thing and so this whole talk of personhood, which is in the Mary Anne Warren article that we read on the moral and legal Status of Abortion, 1973, this one by Noonan was 1970. Her article is about personhood. And this is what gets the most press, is what counts as a person. Can certain animals count as persons? Could severely retarded people count as persons? Person, can all these other borderline cases and talking about concepts in general, is there going to be necessary and sufficient conditions for the moral concept of personhood, or is it going to be more like a Wittgensteinian cluster concept where there's not going to be any answer for the edge cases?

So that's one thing.

24:36 Wes: Well, she's responding to Thomson, right? And Thompson's going to say, we're just going to grant for the sake of argument that the fetus is a person. Even then the woman still has a right to an abortion. And then Warren is going to say, well, actually, if the fetus is a person, that's a big problem. We're going to have to point out why the fetus actually isn't a person. So she's assuming that personhood is necessary for us to grant any rights to the fetus. That's not always the case. Someone might say, well, it's not personhood, but humanness.

And those two things are different because personhood assumes certain faculties like rationality and certain psychological faculties that not every human being is going to have, including a fetus. And then you could go the Marquis route, which is just to say Marquis and Thomson agree on the fact that, well, we really don't have to decide the question of personhood. And in Marquis's case, he's going to argue that abortion is immoral, but he's going to appeal to the idea that there's a general explanation for why killing human beings is wrong and that that applies just as much to fetuses as to us.

And it involves something that he calls a, quote, unquote, a future like. And actually, Marquis also gives a great argument. You know, I think in a way, Thomson overrides it.

25:48 Seth: Right.

25:48 Wes: I think her objections are also pretty effective against Marquis as well. But I think Marquis is onto something when he tries to say, you know, capture our intuitions about why killing is wrong.

25:58 Mark: Seth, to poke the bear a little bit, I didn't expect to find the pro life article convincing at all because I'm just not pro life. But this was a new argument to me. Did you find that paperwork totally facile

26:09 Seth: or not at all? I think The Marquis argument is very good. He acknowledges in one paragraph, I think it's about two pages before the end. He's like, oh, by the way, if I'm saying this, it probably means that human existence on this planet is just one giant train of constant murder, but we don't need to answer that question now in order to determine that, you know, killing this is wrong. So it's the kind of argument I like where you establish something that seems credible on one point. And then what's interesting to me is again, what wasn't said, which is, okay, well, so what are the consequences for this?

It means basically that all the elephants, dolphins, if we adhere to that moral precept of a future like ours, then we've got a lot of soul searching to do as a culture. And I just think ultimately we're not capable of doing that kind of soul searching. But it's the kind of argument I like because really what it's saying is if you think abortion is wrong, then here's 27 other things that you should think are wrong that you don't, or 27 other things the state should be regulating that it doesn't, 27 other things that evangelicals should be giving a shit about, and they don't.

And so I'm all on board if you want to go down that path. I'm with it. I thought the Warren was the least convincing. I feel like she mischaracterized Thompson's position, or at least under characterized it because Thomson was much richer than she gave her credit for with just the violinist example. And Thompson's is also very good. Thompson's is remarkably measured. I think that's the thing that's really interesting. You know, she says, let's just concede the point about personhood, but then let's talk about moral permissibility and what that looks like and what that means.

And she has a very nuanced. And she's also balancing it, saying, I'm not talking about wholesale in Roe. They talk about how the whoever, the plaintiff, the appellant and the appellee or whatever they're called, they were just saying the woman should have an unlimited right to make the decision. And the Supreme Court says, well, we don't agree with that. We also don't agree that it should be completely restricted. And Thomson is kind of along that line where she doesn't think women should just have an unlimited right to terminate pregnancies whenever however they want, for whatever reason.

But she also wants to talk about cases where it's morally permissible so that was a kind of a surprise to me. I mean, we didn't read anybody who made an argument for the. Well, I guess Warren makes that extreme. The woman always has the right to make the decision, because until the thing pops out, it's not a moral agent, it's not a member of the human moral community or whatever. But I just found that unconvincing.

28:34 Wes: Should we start with Thomson?

28:35 Seth: Yeah, I think so.

28:36 Mark: Any prejudgment to throw in, or should we just get to it?

28:39 Dylan: I'll just volunteer that I liked the Thomson and the Marquis best amongst the three. And I had never read any of these papers before, and so it wasn't nostalgic for me, but I did find them all very, very interesting from this practical standpoint that was thinking through something like a. For lack of a better term, a practical problem, but thinking it through in a principled way. So they're great examples of philosophical thinking. The reason I preferred the Marquis and the Thomson together is that they get us down to really understanding that what makes this such a hard problem, and it has to do with things that are really fundamental to us as a community and the relationships of individuals to communities.

And what kinds of obligations can we have of each other and on other people? And what obligations do we have to them? And when does that turn from something like a, well, you really ought to do this. This is an ethical obligation, just something that you can be forced to do. And then that's alongside of the question of value, because it turns out the question of what our obligations are depends upon how we understand the value of the thing that we're being obligated with respect to. And I think that the Marquis does a pretty good job of highlighting the value question, and the Thomson does a pretty good job of highlighting and thinking through the obligation question.

30:12 Mark: The only other preliminary mark that I would want to make is I feel like we're going to get crap for this because it's four dudes talking about this issue of women's bodies. Like, our society does not need more of that. We invited a female philosopher who had taught this in classes, and she got Covid. So.

30:28 Wes: So, Mark, I still think you're wrong about that. The idea of discursive representation makes absolutely no sense. You think my position is absurd?

30:35 Mark: I.

30:35 Wes: Well, since you said that, thinking about that, we're going to talk. We're going to have a debate about that eventually.

30:42 Mark: Maybe in part three.

30:43 Seth: Okay, Wes, just remember, he's not a. It's more about him just not wanting to get canceled and covering his ass. That's what it's.

30:51 Wes: I think he believe,

30:54 Mark: anyway.

30:54 Wes: Well, it could be a fun. Well, yeah, I think a live debate on YouTube.

31:00 Dylan: But I think it's too bad that Jenny wasn't able to make it because of COVID because she really has been thinking about this and, you know, has taught it, and having another person who's really thought through it to talk about it, I think would have been great.

31:13 Wes: Yeah.

31:13 Mark: Yes. I don't know that she would be more like Seth's reaction. I know when I tried to talk in my family about this that certain people are just like, this is too depressing. I don't want to talk about in the abstract about these arguments. This is too important and personal and pressing an issue and too much injustice going on around it. So go on your podcast and have your little talk about that. But I don't want to participate in that. And I absolutely sympathize if people think this is not a game. Why are you guys treating it like this? But as we've been saying, even if you didn't have any stakes in the game, you didn't care about this issue at all As a way of introducing students to philosophy. Like, this is a nice.

31:54 Dylan: This isn't a game. This is exactly why philosophy isn't a game. Right.

31:58 Wes: Pro lifers don't think it's a game either. They're just as impassioned about what they think is the killing of persons. So getting emotional is not like a answer to anything. And saying, oh, this is terrible. The other side feels exactly the same way. So you want to go to war politically on that, that's great. But you have a better chance of success if you can reason it through and have a actual conversation about him.

32:18 Seth: That's a noble sentiment, Wes, but I think to refer back to what Dylan said is these are really great examples of doing philosophy and having conversations about this subject that are deep and meaningful and get to the root of the issue. And that's exactly not the kind of conversations that are happening in public discourse around this and, frankly, can't happen. So this is a fun intellectual exercise, but I don't believe that these could have any meaningful impact on the debate. For precisely because the fact that people are on each side of the discourse cannot reason with each other, you cannot argue somebody out of their position.

32:53 Wes: There are lots of prestigious institutions, newspapers, magazines that could be having these debates, but they don't.

33:01 Dylan: And I don't agree, Seth, that it's undiscussable. I think that it's hard. And I think that these are good examples, actually, in everyday language, about the way to wrestle with the issues. I mean, if I were to put a bottom line on it is that one of the things that makes it so challenging is that there are real conflicts again between our obligations and how we understand what value is. And that at the end there's going to have to be some judgments made that balance all those different kinds of goods of the obligations that we have and the values that we have. And that's what a community is about. And you're not going to sort that out by not figuring out a way to talk about it.

33:42 Wes: It simply is not politically effective. People seem to think it is to heighten one's emotional tone and repeat a bunch of slogans and never respond to the concerns of the other side, never actually engage with their concerns. That can work. In the case of, you know, the recent decision, I don't think it has worked. I don't think the left really defended Roe versus Wade. They treated it as if it were abortion on demand to the very end of the pregnancy. So I don't think the public really understands what's in Roe. I think many on the left don't even know what's in Roe. They don't care what's in Roe. Roe is more of a symbol. If they knew what was in it, if they were able to defend it, I think they would be more politically successful. Ultimately.

34:23 Seth: I love the optimism and the idealistic approach here, but ultimately, what's driving the change in the law now and what's dominating the discourse is something much different. That it's not about the issue, it's about political power. It's about a minority group in this country leveraging this for political power. And so I don't think. Again, anyway, I'm extremely pessimistic.

34:51 Dylan: But my response, Seth, is that that's politics. That's political life at all. And just the fact that there's a group of people that has, maybe even an extreme view, either have a political life in which politics can happen and it's going to ebb and flow and sometimes be very, very hard from one perspective or another, or you descend into an existence in which there's no possibility of politics, in which there's no possibility of having there be community discussion about it, even if it's attenuated. And I think that it's. Even with this decision, as horrible as it is, it's still the case that there is public discussion about it. And if anything, it's in Such a situation, which you need to have more robust public discussion, otherwise it just is going to wither and die in the vine.

35:39 Wes: You know, we saw something different with gay marriage. You know, at a time when Obama and Hillary Clinton were both against legalizing gay marriage. There are a lot of people making principled arguments in major publications including the Atlantic and the New Republic and elsewhere, including some conservatives. And I wrote one of these essays as well and published it in a school newspaper or something. And I sent it to some conservative relatives who were and very religious, who found it actually very persuasive. And I think that actually can be quite effective when people try it.

36:13 Mark: And your paper was cited by the Supreme Court. I remember that it was a determining factor. Exactly like I was on the fence then all went. I was impressed when in my prep for this, I listened to some podcasts, I looked around YouTube and things like that. And given that this is such a pat thing that like a lot of people have to teach in philosophy classes, I think it almost doesn't matter what the proclivity of the professor in question is if they're good. So for instance, I listened to this one from the thomistic Institute on YouTube, Angela Knobel with a K, who gave pretty much the same arguments that we're going to be talking about here, even though as it came up in the Q and A, she's super pro life.

And then on the Ezra Klein show, this Kate Greasley, I heard her interviewed, she gave almost the same set of arguments, a few wrinkles here and there. The literature has expanded a little bit since the 70s. Or this Marquis is from 89. But it's the same basic issues that are going. But it's funny, the disconnect between we can all supposedly argue about, is this a good argument? Are these particular premises well founded? Does the conclusion follow from it? This is like what makes it possible for people of different political persuasions to have productive philosophical discussions as we can just.

Rather than just saying, well, what's your starting position? Or us starting at the beginning and saying what our overall view of it is, and then getting to the arguments is like, let's just talk about the arguments. But still, it's funny that then you could have the same people consider these same arguments, but still like, oh no, but obviously I'm pro choice, you know. But this makes Seth's point about this is not actually going to convince anyone. I don't know. I think there's a book to be written about that that maybe I want to write at some point.

Of the disconnect between reasoning and your actual eventual conclusions. Like, are we prejudging everything?

37:58 Wes: Well, these papers definitely modified my view of the issue. It didn't turn me from pro choice into pro life or vice versa, but they definitely changed my view.

38:08 Mark: And almost at the end of part one, let's get into the first paper, the Judith Jarvis Thomson. Somebody want to give this violinist example, which seems to be the thing that everybody quotes, at least whether you think it's the core of her reasoning or not.

38:21 Dylan: We can just read that section of it. It's the beginning.

38:23 Wes: You start by saying she's going to grant, for the sake of argument, the fetus. And she actually believes that the fetus has already become a human person well before birth.

38:31 Dylan: Yes.

38:32 Wes: And is going to say anyway that there's a right to abortion, but go ahead.

38:36 Dylan: Okay. The argument goes that since the fetus is a person, then the fetus may not be killed, an abortion may not be performed. And so then she goes on to present a hypothetical. He says, you wake up in the morning and you find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment. And the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you. And last night the violinist's circulatory system was plugged into yours so that your kidneys can be used to extract poisons from his blood as well as your own.

The director of the hospital now tells you, look, we're sorry the Society of Music Lovers did this to you. We would never have permitted it if we had known. But still, they did it. The violinist is now plugged into you. To unplug you would be to kill him. But never mind, it's only for nine months. By then he will have recovered from his ailment and can safely be unplugged from you. Is it morally incumbent upon you to accede to the situation? No doubt. It would be very nice of you if you did a great kindness, but do you have to accede to it? What if it were not nine months, but nine years or longer still?

What if the director of the hospital says, tough luck, I agree, but now you've got to stay in bed with the violinist plugged into you for the rest of your life? Because remember this, all persons have a right to life, and violinists are persons. Granted, you have a right to decide what happens in and to your body. But a Person's right to life outweighs your right to decide what happens in and to your body. So you cannot ever be unplugged from him. I imagine you would regard this as outrageous, which suggests that something really is wrong with that plausible sounding argument I mentioned a minute ago.

So one way I would put this is that. And this is the kind of language that's come out since the Dobbs decision is she's making this into a forced birth argument. That's the language that's used now, but that is the question of what are the obligations? And she makes various revisions to it and various extensions of it and various constraints of it. But it really is trying to use this analogy as a way to explore what obligations we have to other persons.

40:47 Wes: Yeah, it turns it more into a Good Samaritan type of.

40:50 Dylan: Yeah, the minimally Good Samaritan and the really Good Samaritan.

40:54 Wes: When we had Peter Singer on, right. His famous example is if you're walking by a pond and it's a shallow pond, child is drowning in it, and it costs you nothing to just wade in and get the child out of the pond, save it from drowning. You ought to do that. And then so I, you know, I asked him the question, what if it's all just ponds forever? Right. What if your entire walk is nothing

41:17 Dylan: but ponds with children drowning in them?

41:19 Wes: Yeah. Do you have to devote your entire life to doing that? You can do nothing else. You can't have a family, you can't do. So then the question becomes, to what extent do I have to sacrifice myself in order to be an altruist for the sake of other people? Isn't there some presumption that I can be more interested in my own well being than that of another? So the pond example is a little bit misleading because it presents this situation in which there's just this minimal cost. So you say, oh, yes, of course I have to do that, but life is not like that. Right. The general question is not like that because there's a bunch of people in the world. So where do I draw the line?

41:53 Mark: And it's funny, that political situation is kind of switched. It's usually it's the libertarians, right? It's the conservatives of a certain stripe at least, that argue your body that is the primary, that is the foundation for all property rights. If anything, if property rights make any sense at all, then your body is the first and foremost property, right? And in fact, maybe like Locke, I think does this gives an extension to explain other things that you need that you've laid claim for, you know, so the whole foundation of property comes down to you and your body.

And this is the way Thomson sort of ends. This article is talking about things that you own are things that you have a right to, the things that you have justice to that other people do not. You can consider one of these libertarian test cases where there's only a single well of water and I own it and you will die if you don't get some. Am I obligated to give you some? According to libertarian, if this is a legitimate ownership thing, if there's not, you know, a problem of the commons. And of course Locke will have a respond to this. But if you take property really seriously, then, well, it would be very nice for me to give you water and let you survive.

42:58 Seth: Really.

42:59 Wes: Is that how Nozick. We talked about that in Nozick. I didn't think that was how he resolved.

43:02 Mark: This is how like some of the extreme libertarian. I forget even the guy's name. So I'm just saying whether or not you believe that that's possible about wells or the, you know, the fact that it's the only water that's available, you probably believe that about a human body. If you're sympathetic to this at all. And so according to Thomson, the fact that you own your body, it doesn't matter if there's a full person in there who relies on your generosity, your continued tolerance of their existence in their body. If they say no, it's their decision. There's no sense in which you're. As the fetus's right to life can overcome that.

43:38 Wes: I think this violinist example, I don't see. There are some objections to it. Right. Which she's going to bring up and we'll get to. But as it stands, I think we have to accept this intuition. Right? We don't actually have to stay in bed with the violinist for nine months. And I wouldn't do it. Would any of you do it? I think it would be unfortunate, but I don't think I would be obligated to sacrifice nine months of my life to keep someone else alive. Then the question is, though, we come up with examples where, well, you attach yourself to the violinist or you brought this in the case of abortion, you are the one who brought this entity into being. So do you have a responsibility? Or there are other cases in which the costs are less. Right. What if it were just it took 10 seconds of your time to save the violinist and we'll get to those examples.

44:23 Dylan: Yeah, you chose. But then you Changed your mind.

44:25 Wes: I think if you willingly attached yourself to the violinist, then I think you do incur a kind of obligation. But she will argue that you can't just say that the obligation to keep the fetus alive accrues to her because while she was engaged in sexual activity and even if she was using contraception or whatever, she knew what the risks were and blah, blah, blah. That doesn't work. And it doesn't work because of Mark's chosen the example that Mark seemed to like best about the floating plants.

44:55 Mark: Imagine if babies. I'm not going to look for the quote on here. But came into existence because there's just spores out there floating around.

45:03 Dylan: Spontaneous generation in your carpet.

45:04 Mark: Yes. And they could just come and you could. And let's say you put. You even weatherproof your windows to try to keep this from happening. You know, the equivalent of using a condom or whatever. But they get in anyway. Are you then obliged. But I mean it's your house. It's your time to raise this thing.

45:21 Wes: You could just close off your house. Right. And never have nice fresh air and.

45:24 Seth: And no carpets and no furniture. It would just be empty where they could find no purchase.

45:29 Wes: Exactly. Everything you could to make sure there's 100% chance that it'll never happen. We actually don't have to deprive ourselves in that way. We ought to be able to live our lives. This again goes back to the same sort of thing as the pond example. We don't have to sacrifice our lives to that extent. In the same way. Women don't have to give up sex, you know, unless they're ready to procreate. That ought not to be a requirement in order to prevent a pregnancy. So a pregnancy may sometimes happen and that doesn't mean that they're obligated to keep it alive just because they wanted to be sexual beings. But yeah, yeah, go ahead.

46:02 Dylan: And a big part of this, like are you required to not detach yourself? She gets into basically kind of self preservation. You have in your right to preserve yourself and fix your circumstance trumps the demand. I was surprised on this point that she didn't bring in other versions of illness or other kinds of accident that affect your physical being that you obviously are allowed to remedy to bring yourself back to whatever your chosen normal is. So in this case it's centered around pregnancy. But it seemed to me that the argument would be illustrated and hold that I not only can bandage myself to help aid my body to heal, I can also go get help to fix myself whether I Contract an illness by accident from someplace or I go to the store and I catch COVID Right.

I could have stayed home. But just because I caught Covid doesn't mean that I can't treat myself. I just have to suffer through having Covid because somehow I put myself in a, you know, knowingly hazardous situation. There are lots and lots of situations in which we would acknowledge that it's perfectly sensible that we have that autonomy to take care of our physical being.

47:17 Wes: I mean, the analogy would be where treating yourself for Covid would have a negative effect on someone else. Right?

47:24 Dylan: Sure. That's what's super added here. And maybe that's why it's not included. It comes up later in the argument, I guess in terms of the third party argument about whether or not third parties can be asked to help you or do you have to do it yourself? Is your self preservation only on your own physical ability to help yourself or can you legitimately ask for assistance in remedying the situation?

47:49 Wes: I think you're pointing to something important which is that when we take care of ourselves, we could be taking care of others. So there's always opportunity costs. And that's, I think, something that's often left out. So any act of self care or any enjoyment, any fulfillment of a desire comes at the expense of another. And yet we think our egoism has a certain priority. And I think that's right. And in fact, I don't think we can ground morality except according to bad egoism. Because when we talk about our obligations to others and why we have to observe their rights, I don't think we could ground those if we didn't think that they also had the right to prioritize their own egoism.

But that's another argument. But I just think there are always these opportunity costs. And so we all reflect on it. We all agree that we're not obligated to not enjoy our life or take care of ourselves because we could be purely altruistic towards others.

48:41 Mark: Well, that seems like a good place to wrap up part one. Let's come back next week. Or if you are a Partially Examined Life citizen, you can check right now. It should be the next thing in your feed.

Thanks.

See you later.