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

0:07 Mark: This is the Partially Examined Life, episode 301, part 3. We've been discussing abortion. We were going to move on to the Mary Anne Warren on the Moral and Legal Status of Abortion Article 1973. And Seth is gone and in his

0:24 Jenny: place, Jenny is here. Jenny who was supposed to be here on Sunday. So. Hi, Jenny Hansen.

0:30 Dylan: Welcome, Jenny.

0:31 Jenny: Thanks. Thanks for having me back. Always a pleasure. Yeah, thank you.

0:34 Mark: How's your Covid?

0:36 Jenny: The COVID symptoms are gone. The respiratory like out of breath and it a little messed up my sleep and I don't have any time until the weekend because, you know, we're in the middle of the semester. So I would say on average, good. Just, you know, the new normal, right? I mean, school starts and everybody gets sick.

0:53 Mark: Perhaps the place to start. The beginning of Warren's article, she, you know, says what she's going to do, and then she gives her takedown of Judith Jarvis Thomson that we spent most of our time on last time. So we should just summarize that argument. And then in the course of that, if there's things, Jenny, you just listen to our parts one and two. If there are things additional about the Thomson that you want to jump in on, you know, things you wanted to respond to, feel free. I think we probably voiced some version of this objection. The quote that I have, which is section 14, is if x behaves in a way which he could have avoided, in which he knows involves, let us say, a 1% chance of bringing into existence a human being with a right to life, and does so knowing that if this should happen, then that human being will perish unless X does certain things to keep him alive.

And it is by no means clear that when it does happen, X is free of any obligation to what he knew in advance would be required to keep that human being alive. In other words, she denies that. Thomson is arguing that even if it's a full person, you have no obligations toward it, using this violinist example. And Warren responds that, yes, in the case of rape, that absolutely works. If you have this fetus in you, this embryo in you, through no fault of your own, you absolutely have no moral obligations toward it. But it is not so clear, says Warren, that if you did the normal things, you had sex, that you don't then have obligations if it is a full person.

And so for the argument against abortion restrictions that abortion is morally okay to go through, you have to believe that actually it's not a full person.

2:26 Dylan: So we should say.

2:27 Wes: Thomson, right, anticipates this objection. And that's the point of her. Is it spores? What is it the plant people?

2:36 Dylan: Plant people living in the carpet?

2:38 Jenny: Is it also. You've, like, close your windows and close your doors. And that is one of the best pieces to teach abortion morality with, from my standpoint, because she's so excellent, taking it away from the fraughtness of the abortion question to these great illustrations about. I did everything. I took birth control, I kept men out of my house. I don't know, I did everything I could.

2:59 Wes: And then I met Alamayo, like, you

3:01 Jenny: know, however you want to construe her analogies or thought experiments. And I still am.

3:06 Wes: So, yeah, it's too much to ask, right? So her idea is that you Know, if you closed all your windows and got rid of all your carpets and chairs and things like that, if you really, really restricted your life completely, then you could prevent the possibility of any of these human plants from lodging inside and developing. But what is that analogous to? That's analogous to not having any kind of sex life, Right. If you really want to make sure that you're never bringing a person into being, you have to cease to be a sexual. Which is arguably too much to ask.

So I think the difference here between Thomson and Warren, for Warren, it seems clear to her that if we do grant that a fetus is a person, then, yeah, we either have to be committed to not having an abortion or we would have to really restrict our lives in such a way, you know, to whatever degree is necessary to have 100% chance of never bringing one into existence.

3:58 Dylan: The way I would put it is that for Warren, personhood itself means that you have incurred obligations. She wants to make an exception for the case of rape, because those obligations get superseded by that activity that you've lost that obligation if you've been forced at that level. But that personhood by itself requires extraordinary circumstances in order for you to lose the obligations. And Thomson wants to frame the problem in terms of what are our obligations and talk about the obligations, even if we accept that it's a person. So she doesn't agree that we incur only those obligations to living beings that you would to a normal adult and to, for instance, not kill them or even go and save them.

Decent Samaritan, good Samaritan conversations. So she wants to say it's about the way in which we understand individual obligation. And Warren's going to say, if you acknowledge as a person, then that individual obligation is too high. So I'm going to argue that we avoid that problem by denying the personhood

5:07 Mark: where this has all been reviewed so far. The thing that I thought was additional In Warren, Section 16, the moral right to obtain an abortion is not the least dependent on the extent to which a woman is responsible for her pregnancy. So she just finds this whole, like, well, were you asking for it? How careful were you? She just finds that whole thing utterly repellent. Like, you shouldn't have to go through that moral reasoning. And not just on Thomson, say, well, abortion restrictor, you're being too demanding, you know, to say abstinence only, just like she doesn't want that conversation to even happen. It is needless, as you were just saying, Dylan, because it's not a person in the first place, and it is just gross.

5:46 Wes: Well, she doesn't say any of these things, right? This is your reaction.

5:49 Mark: Pull out more than any of that

5:51 Wes: impression from this very dispassionate article.

5:53 Mark: This is an ex. This is an extremely unsatisfactory outcome from the point of view of the opponents of restrictive abortion laws, most of whom are convinced that a woman has a right to obtain an abortion regardless of how and why she got pregnant. Right? So opponents of abortion, they don't want to engage in this blame game. So fine, I'm giving you some extra emotional, but I think it is clear.

6:15 Dylan: Well, putting aside the grossness of it, I think they don't want to engage in the question of what's the hierarchy of responsibility based upon choice and getting into parsing the hairs of the individual culpability based upon, well, where was the line of responsibility accepted? Right. That's where you get into those muddy waters. And that's why the rape case is easier. It feels like a clear line in the sand that you did not accept any kind of responsibility. All the other cases end up getting in this morass of different degrees. Did you decide to get pregnant and then you changed your mind at the seventh month because you wanted to go to Europe? That's the indecent example that she gives, right? She says no, that actually crosses the line in the Jarvis case. So she engages in some of that discussion.

7:00 Wes: I honestly think Thomson has a better argument.

7:03 Jenny: What I will say in favor of what you said there, Wes, is that in my years of teaching these essays, the Judith Jarvis Thomson one has the most success in clarifying to the already pro choice person why they are pro choice. It is absolutely repugnant to the pro life person to compare abortion to these what they think are trivial and ridiculous thought experiments. But yes, for me personally, as someone who just was like pro choice because I grew up in California in the 70s, I didn't think about why until I read Thomson. Because for me, when I read Thomson, I think here is a person who is giving a very, I would say, robust, rigorous argument for the ethics of abortion, but largely in service the other point of why we should preserve the right to abortion, which is that I don't have to give my life up as a female just because I'm pregnant, right?

So pregnancy does not have a claim on my life, impedes me from full participation in the political social route. And so I think she's good at demonstrating someone like me of my era, my age, a better way to defend that to people. Certainly not to persuade Catholics, certainly not to Persuade evangelicals. Warren, on the other hand, frustrates me a lot because she is doing the messy, messy work of trying to articulate a view of personhood, but not in necessary, insufficient conditions, not even clearly and jointly sufficient or some sufficient, some necessary, but in enumerating a set of minimal properties.

But that leads her to come back in 82, as you guys have that part of the essay and then have to deal with the infanticide question. Right. So I think maybe Warren does the work that some people might like in the larger debate about personhood and when it begins, but she then has to like, straight on, say. Yep. And this also means infanticide is permissible. So when you teach that article, you take the pro choice students, in my experience and make them. I was totally pro choice until we went there. Why did she bring that up? You know, it messes it up.

So that's just a perspective. I like that she tries to do it.

9:11 Dylan: Jenny, when you talk about the clarification for the pro choice students in the Thomson article, as you heard from our discussion, it becomes kind of gray for her because your obligation to the violinist changes gradation based upon the time, how much you're going to be obligated to, how far along things are, stuff like that. And so she frames this in the end in terms of indecency, that it would be indecent for a woman to terminate a pregnancy at seven months because she doesn't want to miss her trip to Europe. Right. So there's at least that window.

And in that case, that indecency claim is framed in terms of injustice, that she could be prevented from doing so, that it would be legitimate to have legislation against her having an abortion in the seventh month. But then it becomes more clear the further back you go. So there's this kind of gradation in there. And I'm wondering about how that plays out in those conversations.

10:11 Jenny: It could be that I'm reading her differently or that I'm misreading her. But the way that I've traditionally understood the distinction between the minimally decent and the whatever Good Samaritan. So it's kind of like a supererogatory duty or regular duty is I've never been reading her saying that indecency in some cases is immoral. And so when you look at the example she gives of the boy with the chocolates, or let's say pregnancy only lasts an hour and you're inconvenienced for an hour, or let's say the violinist, right. So I do see her making These gradation arguments, but I guess I've always read them as.

At the end of the day, none of us as. And she's not using this language. This is Warren's language. None of us who are members of this moral community can be expected or forced or can the state impose on us supererogatory duties. Right. And she also brings up the Kitty Genovese example.

11:07 Mark: Why don't you just lay that out for a second? So for folks that don't know that name.

11:11 Jenny: So she gives the example at a time would have been everyone's mind, right. The rape and killing of Kitty Genovese, I think it was in New York City or the boroughs and there were 38 or 39 onlookers and not a single one called the police or called for help. And she contrasts the idea of a single individual going in. You can see why it would seem unfair to put on that individual the sole obligation of going and stopping this, given that it's a violent crime and that person now is going to be what obligated to put their own life on the line. But she says, I don't understand how the 38 other people couldn't have at least minimally called the police.

Right. But even in that case, I don't think she's arguing they had a moral obligation to. I don't think she thinks that any of us have a moral obligation to do anything more than a minimally. I don't know that she's even saying we have an obligation to be minimally decent.

12:02 Mark: I thought maybe that there was just a different. Because the distinction she was making between decency and justice, so you could see both of those as flavors of morality and justice is obviously getting much closer to the law. Like, it's not that everything that's unjust can be prohibited or should be prohibited by the law, but that's the aim of the law, is to prohibit that which is unjust. It is not to prohibit the indecent. It is also indecent to break someone's heart, to kind of use them and string them along and then just ditch them and make them very sad. Like maybe at this point you could sue such a person for fraud or for emotional distress or something. But traditionally conceived, there's no justice entering that at all. But still, it's a dick move, don't do it. And it's immoral in that sense.

12:47 Dylan: Yes. At the beginning, especially in the framing of the violinist argument, she makes that distinction, that it would be very generous of you to stay attached to the violinist and so forth. When she gets to the last several sections and she brings up this case where she italicizes ought, you plainly ought to allow him to use your kidneys for that hour. It would be indecent to refuse, she proceeds along on into the end of the last section. She says, while I argue that abortion is not impermissible, I do not argue that it is always permissible. There may well be cases in which carrying the child to term requires only minimally decent Samaritanism for the mother. And this is a standard which we must not fall below. To me, that means that she would put in the category of minimally decent Samaritanism questions of justice and that you could legislate for those. That's how I interpreted her.

13:40 Jenny: I have a different edition because I went back to my moral issues textbook. But I'll take you about that area. And so after she's discussed Kitty Genovese and she's discussed the chocolate, the snotty kid with the chocolates, and she's brought these cases forward, I think, to flesh out the distinction between the two. She goes on to discuss Jesus, parable of the Good Samaritan. And she muses upon the idea of what he means by go and do thou likewise. So right after that, she says, with one rather striking class of exceptions, no one in any country in the world is legally required to do anywhere near as much as this for anyone else.

14:19 Wes: So she's talking about rushing out to give assistance, but I also think she

14:23 Jenny: means minimally decent as well.

14:25 Wes: I think she's saying that that actually is more than minimally decent. That's the Good Samaritan. The Good Samaritan risk their life, right, to save someone. But the law doesn't even require us to be minimally decent Samaritans, much less Good Samaritans who are willing to risk our lives. So that's the way I took.

14:42 Jenny: No, you're right about that. That is fair. But I think it's always a little fuzzy to me, because I think she does make clear her point that nobody under law is obligated to be a Good Samaritan. But she seems to be making a weaker case. But I don't quite know if she is saying it's a justice issue, that it's indecent. Right. We should be minimally decent Samaritans. But it's not clear to me that she thinks this is something that can be legislated.

15:08 Wes: Yeah, that is unclear.

15:09 Mark: Did you guys think of the Seinfeld finale? All the characters are put in jail because they watch somebody getting robbed and they sort of make fun of it as it's happening. It's like these Samaritan laws, I guess, at the time this were being considered or enacted in some areas. So the idea of these characters that all along you watched and you thought that they were just kind of being assholes, finally, society is getting. Getting tough with such people and making

15:34 Jenny: it not giving a shit of this Seinfeld cast, like, they're us, they're Gen X.

15:39 Mark: Let's actually make it illegal to be that way.

15:41 Jenny: Yeah.

15:42 Wes: And it's a really bad episode. So that should decide the matter right there.

15:47 Jenny: I want to say one other thing about the Warren, because I'm not sure that I see them disagreement. I see them taking it from different ends because they have different ideas about what is the better moral approach. Again, all of these are just arguing on a very high level of moral obligation. And I see Warren. The way I would contrast them is not that they're in argument with each other, but that Thomson is like, I don't want to get into the personhood debate because A, it's not a scientific question, and B, it's not. It's nearly impossible to articulate with a lot of iteration and debate and discussion.

Right. Because we might put down the five criteria she does and still be like, do you need three? Do you need two? Do you need all of them? If you have none, is that good? You know? Whereas Thompson's like, let's just assume it's a person. Let's just say the fetus is a person, a moral person, not a genetic human in our moral community. And even then, there doesn't seem to be in every case an obligation to preserve the life of that person. She's like, I'll just take the argument. I don't want to split hairs over personhood. Right. So I think it depends on what kind of person you are in this debate.

Not moral person, but philosophical person. Do you want to get into the weeds and do that careful work of like, okay, well, let's do this. Let's come up with a count of personhood, which I think we have to do still. Right. Because now we have questions like cloning, artificial intelligence, our trees. In our moral community, who belongs and who doesn't. If we say humans, we may be then being speciesist, which could be as much as bad as being racist. Right. If we say the entire ecosystem should be our moral community, then it just seems like it's too wide.

17:32 Mark: Which weeds you want to get in the personhood weeds that warned us or the minimally decent versus is decency the same as morality? Can decency be legislated? That's a different kind of weeds. I think we've demonstrated well enough those are still weeds.

17:45 Jenny: I think there's still a lot of need to have this conversation about personhood and who's in our moral community. And I think that it is not unique to abortion. In fact, it's odd to me that that conversation really only gets as much attention for your undergraduate students or even graduate students on the question of abortion. Right? Because it would be on the question of incarcerated people, it would be on the question of refugees that are in the border. So personhood, it would be questions of global warming. So these are deep debates we have to have.

And they're never, in my view, because I'm a philosopher, going to be settled in a way that everybody agrees. Hopefully we're going to win over more people with arguments than others. Thompson's strategy seems to be kind of a public policy and feminist strategy. On the one hand, what exact interest, it's kind of almost a critique of the state interest in the fetus. In what sense does that override the house of the fetus, the body?

18:45 Dylan: Warren doesn't put it that way, but I like that way of framing it, that it is trying to provide the decision making points as a public policy kind of thing. In that way, the viability marker is the Roe decision is doing the same thing.

19:01 Jenny: I always look at this from the Casey lens because I was pregnant and I was subjected to Casey, not to Roe, which was worse for me. And we can get into that or

19:10 Mark: we don't have to say what it is, just explain in two sentences what that means.

19:15 Jenny: I had my child when I was 37 and I had an obgyn who forgot to schedule my amniocentesis within the the window in which I could make a decision to abort via the Casey statute. And so I at that moment became all of a sudden more than theoretically interested in abortion because I was married to a Jewish man and my sister in law who was married to his brother had had a false positive diagnosis of Tay Sachs for the fetus. So I had not been given an amniocentesis within the Casey framework because viability changes in Casey from Roe. And so that's why it was more meaningful.

I had, you know how that worked out is fine. My child was fine. But I had to take a leap of faith because I no longer had the right to abort my child. So I had to decide, do I just not know? Because I could do the ultrasound, which I did, but I could have just said, fuck it, I'm just going to gamble. But I had just been told that my sister in law who was pregnant around the same time was worried about Tay Sachs. So those kind of situations about viability in Casey bothered me because I think Casey gave far more weight to state interest in my pregnancy than Roe did.

And so Thomson, if you think about from a public policy perspective, I always gravitate towards her because what is the law doing? And again, you guys might. Or a later episode on is the law? Is the Constitution there to clarify for us our moral obligations and then to sort of codify them in one coherent moral thing? Maybe? Or is the law there to protect and balance interests and promote the greater good, but balance the individual's right? Like does it put in incentives when it thinks things are going the wrong or the right way and they want to go that way?

Does it put in taxes or prohibitions? So I think Thomson just kind of gets away from, let's just make this really as clear as possible and say this is personhood. Fetus is never a person. In fact, not even a baby out of the womb is a person. So abortion should be moral. Thompson's like, no, I think this is a complex public policy conversation that people get lost in because abortion has so much heat on it that if you change the example or you change even another moral issue, genetic engineering, would you come to the same conclusions? There's laws in the books in Louisiana still about buying sex toys, that's illegal.

Having sex with someone of the other of your own, whatever gender, sexuality. I don't know how we talk about this these days, but those sort of typical homosexual encounters, all of those laws exist still in Louisiana. Nobody is going to tell. Nobody's going to bring a case like they did in the Dobbs to finally get rid of those laws. Right. Which is interesting. No one's gonna go in. Do you remember the case in Georgia in 2000 where a policeman was at a party and two men were having sex in the other room and it was against the law. Sodomy. And so he arrested them.

That is so rare. Okay, so you're not going to have, for example, these laws, if we're going to talk about laws as the codification of our collective moral view. But many of them will never be enforced, nor will they ever be taken to the Supreme Court. It kind of throws a wrench in the argument that the Constitution is essentially Supposed to be more than a pragmatic doctrine, but actually rooted in foundational moral set of duties or obligations. If we have laws all over the country still that no one's going to enforce, no one's going to take off the books because to do so would mean to bring a case to the Supreme Court and have it overturned and they're not going to put the money or time or energy into it.

So I think that's interesting if we're just thinking in general about the difference in approach between the two because Mary Anne Warren's having the argument with Noonan and Thompson's having the argument with probably things like the Hyde Amendment or other sort of right after Roe, you immediately have all federal funding pulled. So it's not a meaningful right for most women who had it at that point because they couldn't use Medicaid. Right. So I think she's thinking more that way. That's just the way that I've thought about how to teach them.

That's always an issue because the morality of abortion, you can try to make it just about personhood, but it quickly spins out of control and we don't seem to have that problem. Again, when we're having other discussions about moral community and moral personhood, let's get

23:49 Mark: into the actual argument about personhood. We kind of laid this out before that there are these five characteristics. They're all psychological characteristics. Does the alleged person have consciousness, reasoning, self motivated activity, the capacity to communicate and the presence of self concepts? And each of those things is explained a little bit, but I think there's probably evident enough because the details don't actually matter. It's just that this is a cluster concept. There could be things that have some of them, but not all of them.

But the fetus, according to her, has none. So together they make a. At least one of these is necessary for personhood. She's trying to make as weak a claim as possible. She's not going to decide whether animals are persons. Animals are self directed. They seem to have self motivated activity. They might even have some presence of self concepts. They might communicate with each other. We could argue that stuff all day. None of that will matter. The fetus has zero of them, but

24:43 Wes: it's still not strong enough to exclude infanticide.

24:46 Jenny: Yeah, again. So let's take it away from abortion for a minute. Let's accept her five. What do you want to call them? I think maybe one of you describes this as Vic and Sinny in the last episode. I mean, I would say that the way she's not offering necessarily insufficient conditions. She's offering prototypical thinking.

25:02 Mark: The adult human is a prototype person, the rock is a prototype, but not first.

25:07 Jenny: So that's the more Wittgensteinian approach to categories. Right. So we're not going to sort of figure it out and sort of siphon out the wrong people because we've precisely figured out the criteria to just pick up in our net the things we want. Instead, we're going to have some blurry lines on the edges. We're going to have a basic idea of what counts as like a robust sort of, you know, sense of it, but in the details. We're going to have to make these cutoff decisions. We're going to have to see. It's going to make us realize not only is abortion permissible, but perhaps infanticide. So that might mean it is permissible to euthanize cognitively deficient people. Or maybe it's going to be okay to have a highly advanced artificial intelligence that is anyway in every way that we can tell, similar to ourselves, but because it's, I don't know, falling short of something, we can kill it.

25:59 Dylan: I was a little bit confused about if you decide that personhood as a member of a moral community isn't sufficient to decide these cases, what keeps us from choosing other criteria? That you would say they're not a member of the moral community and there'd be other kinds of things that you deny them, but you would also extend protections. We already do this, like with dogs and cats. Dogs and cats have special dispensation for just to say they're arbitrary reasons, but they have. Mammals in general have more rights in our relative to our moral community than spiders and ants do. And it doesn't seem to me that personhood, even if you said, well, that's the highest level of inclusion in our moral community, would prevent you from having separate laws that would provide protections for other beings. It just means that it's not the lever under which you're going to make that decision.

26:52 Jenny: Yes. And to simplify this, what you just said, the way I do to my students every semester is let's just use this operating definition of personhood means I cannot kill or harm another person without justification. So then if that's kind of the basic definition in terms of obligations of moral community to persons. Yeah. Then you get into these cases like, so if I'm pissed at my dog, I can throw it out the window on the freeway and be done with it. And then you're right, intuitions come up for us and laws even, no, you can't take your pets and just dispose of them. You might get fined or you have

27:25 Dylan: to do it in the right way in this case.

27:27 Jenny: Right? And so I think that all she has done in that article, she's another one that she kind of develops. But let me take a stab at this. Let me be a philosopher here for a minute. Let me think about this logically. Let me think about what personhood means and why it seems silly to conflate it the way Noonan does with genetic humans, human beings and persons, right? Because you can have human beings that are brain dead, have no brain activity. You can have human beings who are cognitively impaired.

27:57 Dylan: That you would deny personhood where personhood is not saying they're not human. Personhood is just. Is the catchphrase for you are a member of the moral community in a particular way.

28:08 Jenny: It's interesting, right, because she's actually making a better argument than Noonan there. Because Noonan's probably motivations is to not only stop abortion, but to stop taking people off ventilators, to stop any kind of treatment of human beings, beings as if they're objects. That's kind of like the sense. But then by conflating or making identical moral personhood with human being, it's actually narrowing your obligations where maybe they should be wider, right? Because maybe you do have a moral obligation to somebody who is brain dead, even though they may not even at that point count on Noonan's discussion of person as a genetic human anymore. I don't know. Right.

28:44 Mark: Why would someone who's brain dead not count as a genetic human? I thought that was entirely the point. In fact, a clump of cancer cells can be officially genetically human, right? It has growth, it's an organism, it has human DNA.

28:56 Wes: There's human, there's human being, and then there's person. So I think Marcus makes this distinction. So you can make as many distinctions as you like. Do you want to stop at human? Do you want to say, well, no, not a cancer cell, but a human being, whatever that is, which obviously in not every case is a person, and then personhood would be the highest standard.

29:16 Jenny: I'll agree with that. And I think if you take someone who, and I can't remember anymore if Noonan is actually coming from the Catholic Church or not. But if you take the Catholic Church's position on personhood, they should also be absolutely opposed to the death penalty. They should be absolutely opposed to locking up children in cages at the border. They should be absolutely opposed to people Living in dire poverty and unable to get health care. If they take personhood, moral personhood, or the inviolability of human life seriously. But they don't.

29:45 Mark: Let me just push back for a second. So what? I heard some Catholic thinker talking about this, but that it was, as we discussed last time, they put a lot of stake in the commission versus omission thing. So you don't stand in the way of life. Right? Everything has its God given telos or whatever it is growing in a certain way. The fetus would grow in a certain way unless you interfere. And likewise you shouldn't. Euthanasia is just let them die the natural way. But if you merely don't use extreme measures, and that's an omission, maybe that is okay.

You don't necessarily have to take extraordinary measures, particularly when you start talking about positive rights of somebody is hungry. Therefore you have to, as Wes was saying, make your entire life. Maybe if you're Mother Teresa again, it'd be very morally admirable to give your entire life to helping out people in need. But you are okay morally as long as you just don't actively take measures to stop life from doing its thing.

30:42 Jenny: Okay, let's go with that because I think that's a cool way to put it. Or if we're in a frame, that's the position. Because someone could say, no, I am Catholic. I do believe in the inviolability of all life. It doesn't mean, if I could use Thompson's language, it doesn't mean I have to be the Good Samaritan. It just means I can't block their potential. You know, come on, are you blocking a life's potential by not offering them every possible advantage at health by healthcare or every possible advantage by education that's free without student lending? So I think what counts as blocking and what counts as actively stopping the potential of someone's life.

31:15 Dylan: You're raising an important distinction. It's implicit in these articles, but Thompson's very focused on your individual obligations that you incur for yourself based upon relative connection to you. Okay, that's what the Violinist argument is about. But you're also raising the question of are there separate obligations that the state has to you because of your role as a citizen? That's a slightly different conversation about right and obligation with regards to the state versus in regards to an individual person. It may very well be that the state has an obligation to provide rescue and support services to its citizens as part of their obligations to their life and limb. And that might Be different than whether or not a individual person is obligated to go into a burning building and try to save somebody. Those strike me as, on the face of it, importantly, different conversations.

32:14 Jenny: Yeah. If we're gonna go Back to Thomson vs. Warren, I think because Thompson's like, fine, I will grant you everything you want and still show you you're wrong. I think that she probably does a better job making those distinctions than someone like Warren, because Warren has made it possible in her argument and the way she's laid out personhood to show that abortion and infanticide are moral pretty much in all cases, regardless of whether you want it or didn't want it. Thomson is actually more thinking in a very pragmatic, public policy way and making those kind of analogies.

Which reminds me something I wanted to go back to when you guys are talking about the spores, because I also think I maybe have read that differently, and that totally could be on me. I tell you one success story I had with. Because I had very conservative students when I taught at Gettysburg, and I had a student completely change their mind to pro choice. And I changed her mind using Thomson and focusing on the spore stuff. Because what I said was, let's take a minute, and everybody put in your head who you think the typical person is seeking an abortion.

And I want you to picture as concretely in your head as you can. And most of the students will say, you know us teenagers. What if you are 52 and you're still capable of getting pregnant, okay. And you use protection, or you're married and you're kind of, like, iffy, and if you will get pregnant and you get pregnant and you don't want to be anymore, Right? Or. But at this 4, case 4 precisely, you're on an IUD, your husband's using a condom, or, I don't know, got his tubes tied, and you still get pregnant, Right? So then what happens is the student goes, wait a minute.

My mother could be somebody who's raised me and my sister and wants her time now to be happy because we're at college. I want her to be able to say, no, I don't want to raise another kid. Especially when she used protection. So I think a lot of the intuitions about where you start with who's the person getting the abortion, it's easier to show how much that leads you down a wrong line of reasoning because it's based on a kind of all this other messy shit about sexuality and promiscuity and trying to keep people in their pants. And I was in Pennsylvania time where they only had abstinence, only education.

This is when the Roberts court starts and you get Alito. And I think that Thompson's generation of these really vivid analogies allow you to pivot to a student. Like, I didn't say, okay, so let's take away the spore thing and let's just talk about it being your mom, what happens in it, and it really does change. In that case, it changed her mind.

34:51 Wes: Yeah. I think what it does very well is it that if we have a caricature of how unwanted pregnancies come about, then, yeah, we think, as you just mentioned, of something like promiscuity or carelessness. And then we think, well, they did something careless, and now there's a life, and they have responsibility to that. But what Thompson's intuitions help us do is to see that it reminds us that we could do everything responsibly, that we could. Right. We could be as careful as we wanted and still have an accident. What it does is it makes you think about the whole spectrum of what it means to be careful and.

Right. If being careful means being 100% careful, that means not having sex. This is kind of similar. Again, I bring up this example with Singer because I asked him when he was on the show, what if it's all ponds forever? So if you make the cost of something seem minimal, then you create immediate obligation. Okay, it's a kid in the pond. There's no chance of me drowning. My life isn't at stake, so I should do as much as possible. It's a small sacrifice, and it's obvious what I ought to do. But those things can kind of add up. And I don't actually, as a Samaritan, a good Samaritan, have to sacrifice my entire life doing good for all the unfortunate people in the world.

That is not something that I'm obligated to do. And similarly, I'm not obligated to either give up sex altogether forever or to have children.

36:19 Jenny: Well. And then you can get into those odd debates. So I went to three Jesuit colleges, people. So while I'm not a St. John's person like you, I did the work. I read all the history, philosophy. And then you get into these interesting Catholic debates about, well, is ejaculation or is masturbation abortion?

36:37 Dylan: Because of the potential argument that's what you're.

36:39 Wes: Well, every cell in my body is a potential person with the right technology,

36:44 Jenny: which is not teleology. So, Right. Like, you take the aerosol out of

36:48 Dylan: there I do think Mark brought this up at the previous conversation, but I tend to agree that that extrapolation, you know, if it's an infinite sea of ponds with children in them. So that extrapolation argument says, well, obviously I can't be universally held personally responsible to be obligated to the health and welfare and all of the misfortune for every individual out there. But it also, at the other end, it seems to be that there are, because of time and proximity, there are going to become certain cases where there is something like minimal obligation, as you would expect.

Right. And Mark had a good example. If I walk out the door and there is a baby in a basket, it doesn't seem to me quite right to say that I can just step over that baby, go to work and not worry about it at all. That doesn't seem quite right. And that happenstance, that there are happenstances for which because of proximity, we incur some amount of obligation. Now, it may not be an obligation for all time or anything like that, but there's some amount of obligations as members of a civic community that we undertake. Now, that part of the conversation isn't completely.

I mean, that's.

38:02 Wes: We have an obligation to drop it off at the firehouse.

38:06 Dylan: Well, that might be it. Right. But what I'm saying is that there is an obligation. It's not that there is no obligation at all.

38:12 Wes: Yeah, I agree.

38:13 Dylan: There's something going on again on this gradation. That's where the viability discussion is. The viability discussion is about where do we cross the line into, what kind of level of obligation do we have. And one of the things I find a little bit unsatisfying about all three of the articles is trying to come up with that silver bullet that allows you to decide the case without any gradation for all of them. And there are pieces of them that align with our intuitions. But just like the example, just like my quibbling with the ocean of puddles problem is they work for a range of the question, but they don't extrapolate to the whole thing. To me, that ends up meaning that the character of the problem changes based upon the circumstances, based upon the context and conditions, and the scope of solution

39:02 Jenny: will also change, which is a more contextualist approach. Right. I personally agree. If that's how you're saying that might be the way to go about it, that's how I would go about it. Which of course is not traditional moral theory, which likes to have a theory and a set of rules. To work in and parameters. But one of the failings of all these arguments and most moral issue arguments that are trying to get to that level of abstraction has to with do with the word intuition and the way philosophers think intuitions do a lot more than they do. So I'm just going to go back to the example of a baby left outside your doorstep. Can you just step over it? I'm not going to answer that question, but I'm going to make a joke that I think makes a point, which is a couple streets from me, there's a huge barn.

39:43 Wes: I thought you were going to say, what's black and red on your doorstep.

39:46 Jenny: Yeah, I live in a very rural area. There's a barn with a beautiful white baby's face saying, choose life. Me and some friends thought, let's get drunk and go paint that face brown. But an analogy I'm trying here, people's intuitions, just surely you would ignore that baby. Unless, of course, maybe you're in India and there's a shit ton of them around you and you just have to get from one place to another, right? Or in our case, the racism that haunts us and the, you know, we don't really care about preserving black and brown babies.

40:16 Mark: This is what confuses me about, you know, you were trying to say that there's a relevance in this personhood argument as it appears in Warren, to issues of immigrants and things like that, and we had a whole episode on grievable lives was the way Judith Butler put it. But according to Warren, all these people are obviously persons. There's no debate over that at all. It just seems a bit of rhetorical excess to say, oh, you're going to consider fetuses persons, but you don't consider these actual human beings persons. Of course they think that they are persons, but like Wes's Pond's example, they feel like.

But there are limits to how good a Samaritan I am required to be. And if we feel like the safety of our country requires that we have firm borders and we have to put America first because we have limited resources, all that stuff is an argument that our duties locally are more extensive than they are outside of whatever in group they're defining. And so, yes, you could argue, like Judith Butler does, does that we really should enlarge our what we consider our in groups. And this is all just parochial tribal bullshit that is all legitimate and stuff that every ethicist, Kantian, utilitarian, whatever is going to join you in.

But it seems like it is a fundamentally different Debate. It's not relevant really at all to this personhood discussion as Warren engages in it.

41:40 Jenny: No, but the proximity question is the one I was addressing. Right. It seems very. Makes sense intuitively that I walk out my door and there's a helpless baby there. I'm not going to be like, moving it out of the way and taking off to work. That seems so clear. Except that there are people that we're in deep proximity with that we do that to every day. Whether we do it because we can justify to ourselves they are illegally crossing the border, or whether we do it because we think, look at how criminally gross they are and they don't, you know, fuck their baby, you know, or like.

Like, I don't know. So I was kind of addressing the proximity point because we want to think that there's something there. We want to say, yeah, okay, so we don't have all these obligations to distant others. We have proximal, immediate obligations, let's say. But I don't think, because when we go to describe why we end up probably going back to personhood and then we go back to abstraction, and then all you have to do is come up with five or six counterexamples that shows the person that they don't actually consistently believe they have those obligations.

Can I just say one more thing, though, that I wanted to introduce as the female, just so happens to be feminist, but also huge fan of history philosophy. Guest. You have here. The one thing that I. That I would like to see more anthologized article, or at least in these anthologies, is the focus on the moral agency of the woman. Okay? So we don't talk about that. We talk about what our obligations are to whether or not that is a person or not. But we don't talk about what's really kind of central, which is, why don't you trust the woman to know that?

Why don't you trust the woman making the decision to know when she's being indecent or being morally permitted or even maybe being moral by aborting? Right. The woman's own moral critical thinking is not considered viable. So we just focus on whether or not the fetus is a person or not, which the woman knows as much as the woman's wrestling with this shit. Right? Like, go back to my example. I wanted to have a baby. I was 37. You know, these are complex questions women have to wrestle with. And if we want to see women in the same tradition that we thought about, rational thinkers in the Western tradition, then we need to say that women too are making these decisions in ways that we have to trust and not assume that we have to regulate their actions, which I think is the weird thing about abortion, if that makes any sense.

And that was just the last point I wanted to inject in if I could add anything different to this debate. But otherwise it's fun to talk about the way we've been talking about it.

44:14 Dylan: Do you think that Thomson goes a long way in pointing towards that discussion? She does not put it in the frame you're talking about, but I would say that she takes a step back and maybe if I talked to her, she would admit that she's intending to make it as broad as possible about human beings in general and their obligations. And even though it's about agency in general, it's not about agency for women in particular. And maybe she would view that as a rhetorical strength of her argument.

44:45 Jenny: And also, these were all written a long time ago and I think Thomson go back and look at how many articles are written by women at that time, published, right? So she's a very well educated analytic feminist philosopher. She's arguing on their terms. She's not going to convince your basic abstract analytic moral ethicist to have a debate about whether or not women are moral agents. She's going to try to take the argument to them as it is. But the genius of her argument for all of us is her analogies do allow us to then go, you know what she's talking about?

She's talking about women actually being able to make these decisions or she's, you know, that kind of stuff. So I think if she was writing this in 2022, in the wake of the Dobbs decision or before, she probably just. Or any feminist foster and they do, would talk about those things more directly, but none of those get in the books. I could talk about this forever. I'm sorry I could only do it for an hour with you guys, but.

45:42 Mark: Well, thanks so much, Jenny, for coming for this hour. I feel like we were trying to stuff your participation of three hours into one hour. And so perhaps I'll just take bits of that and edit it into the previous section. No, no, no.

45:56 Jenny: But honestly, I'm glad. And you guys had your own internal discussion about whether or not you should do this without a woman. I'll leave that to the side. I'm just glad you're having the conversation because I don't think I've taught abortion in years because it just got so boring. But it is interesting to come back to it now. When people like, even in Kansas are like, wait a minute, I thought I wanted to get rid of it. Give me my rights back. Like, maybe what I wanted was for my own right. But you can't have abortion. So I think it's important to go back to some of these texts and then go back to basics. So that's just independent of the positionality of the person making the argument, if that makes sense. I think your listeners who are not professional philosophers should get into this and then expand from that.

46:39 Mark: So with all the misery that the Dobbs will bring about, the bright side, has it made a part of philosophy fun to talk about again?

46:48 Jenny: And there's going to be books and there's going to be conferences, and there's going. I mean, it's going to dominate feminist philosophy.

46:53 Dylan: Now we know that all those Supreme Court justices are just in the pocket

46:57 Mark: of the publishers of Big Philosophy.

46:59 Jenny: They're all secretly philosophers, and they just really wanted to raise some questions.

47:03 Wes: But make abortion debates great again.

47:06 Mark: This possible nightcap thing that I was talking to you about, about whether it made sense for us to do this episode without a woman on it with us. We're not going to try to do that right now.

47:15 Jenny: It's fine. Mark and Wes, you had a debate last Sunday about this. It seems to be an ongoing debate.

47:23 Wes: I've written an enormous amount about this and spent an enormous amount, amount of time thinking about it. So I have, like.

47:29 Dylan: You have thoughts, Wes.

47:30 Wes: So it's not just something that I'm just like, off the top of my head. It's something that I try to think through, and it might seem like a radical view.

47:37 Jenny: It's not new to me. Again, I went to Jesuit College. You know, the focus was on the ideas, the text. Reading the text closely. It wasn't on the body that you bring to the classroom is part of contribution. So I'm not. I don't think your position's absurd. I don't think it's. That you haven't thought about. I know you enough to know you thought about it. But I do think the debate is fascinating for a lot of reasons.

48:00 Mark: Wes, whenever you've written the definitive version of this, you should go on. It was so instructive for me to, like, go on. That Brain in the Vat podcast that I just said pointed you guys that they just had one on trans sports without a trans person on which was. This was one of the things that was most at issue with ours is like, can we treat trans with a. But at least the way they did their Podcast. It worked okay. It was. Here's an academic that's written on this and they're like, very argument oriented. There may be less touchy feely than we are of, you know, if they're all taking a position and argue, you know, sort of debating it. Debater.

48:35 Wes: Yeah, I didn't know that either by comparison.

48:37 Mark: So I'm saying, Wes, I think that would be a great venue for you to like. They'd let you say your piece and they'd push back and it would be actually constructive in a way that perhaps it wouldn't be for us. Not that we can't do it.

48:49 Jenny: I would like to make philosophy debates great again. And I think that the cancel culture, which may be what irks you to some degree, Wes, and irks me, is what I would probably like, you know, oh, well, you don't have any rights to talk about this because you don't have have X, Y and Z. I have problems with that particular style of argument. I also think your body and the body you live in that you bring to the classroom matters. So I don't know.

49:13 Dylan: I would love for us to have this discussion. We could even have it be a topical whole episode because I think there is a lot to talk about about the way we talk about it today.

49:22 Wes: I was trying to finish up this piece and so maybe I can get this done in time just so you guys will see the systematic. There's a million little facets to this whole argument, and there are actually some stronger. I try to argue the other side as strongly as possible. And so I've come up with what I think are some ingenious defenses of the position my opponents want to take.

49:42 Jenny: If you listen to the podcast I did with Bill Arnett and Mark, I hope no one at my college heard it, but I made fun. There's this new committee that was started by white young female faculty called cares.

49:54 Wes: Karens. Sorry, cares.

49:58 Jenny: And what it is, is they've decided they've heard what everyone said. They are not going to expect people of color to spill their guts. They're going to take charge. What do they do? Things like, here's how you should design your syllabus this semester. You need to recognize you shouldn't have an attendance policy. People from some cultures have a different sense of time. You should not have a policy about writing. Some people would prefer to express themselves in dance. Right? And so I totally mock this on the podcast with Mark and Bell, and I just say, you're right. White male students who play lacrosse should not be Expected to show up to class on Friday after being at the hoot owl all night for Blute.

50:33 Wes: Oh, the hoot owl. That brings back memories.

50:35 Jenny: Yeah, right. And they shouldn't be criticized for not having done the reading. They have every right to expect complete dominance in the classroom and say what they think, but that's how I get around these issues is irony. Right. Or redundancy. So I would like to have the debate. But I also would say I don't think I would ever have cared about the abortion issue as much as I did had I not become pregnant. And that goes for my ex husband. I think he cares more about it because of what we went through. Right. I don't think it didn't affect him because he was the man. But I just think there is something to the body you bring to the classroom and the experience.

51:12 Dylan: Well, not just the classroom, just to ethical decisions and decisions about life and choices and stuff like that. And this is where I think the discussion, it gets really, really interesting is how analytical are we? And then how much does. Does our personal context matter and how ought it matter or not matter? Then you have the separate related question regarding the optics and politics of doing some kind of public media, right? And what kinds of obligations do you have or don't have?

51:42 Jenny: Well, you are particularly susceptible to that because it is social media and podcasts where cancel culture started, but it started to get more viewers. Like it's mostly bullshit, right? Most of the time it's young kids canceling each other out so they can raid each other's followers and make more money, but you are the target of it. I don't think you should care, though, as long as you're not intentionally deciding that these things don't matter. You know, I mean, you're not saying it doesn't matter whether you are trans or not in terms of how the world appears to you.

You're not saying that. You're saying we should be okay having a philosophical discussion about these issues respectfully with each other, maybe fucking it up, you know, but it doesn't mean we don't get to have the conversation, because that's, again, it's like tribalism or I don't know what that is. I don't like it. The other last thing I will say, just from my own personal experience, is a colleague of mine that literally just got kicked off campus for a false accusation of rape. And this is another example where, like, the MeToo movement, which I was typically a fan of, has gotten out of control to the point where the claim was not believe all women.

The claim was, listen, listen to them. It doesn't mean they're telling you the truth.

Right?

But everyone quickly moved to the oh my God. So a colleague says he did it to her and now this guy's career is ruined. Even though it was two 40 year old people on at his house off campus. Had nothing to do with, you know, who knows what happened there, right? No evidence. His career is ruined because we've taken things that are reasonable. Like, yes, women have moral agency when they say things are not automatically lying. That does not mean every time a woman tells you what happened to her, she's telling you the truth. So I think those are the kind of distinctions we have to make. Yeah, that was really depressing. Sorry, guys. I'm gonna go drink just to think about that because I love that colleague so much.

53:37 Mark: Let's wrap up on that sentiment.

53:40 Jenny: It's one of those reasons why I care about this discussion you're having. I don't care if I went out there and feminists cancel me. I would say everything I just said right now. So thank you again.

53:50 Wes: Thank you.

53:50 Dylan: Good night, you guys.

53:51 Wes: Good night.

53:52 Mark: Bye.