Ep. 306: Dworkin and the Dobbs Decision (Part One)

0:07 Mark: You're listening to the Partially Examined Life, a podcast by some guys who at one point set on doing philosophy for a living, but then thought better of it. Our question for episode 306 is something like, how should judges interpret the language of law? Or more specifically, does the United States Constitution guarantee the right to abortion? We read the 2021 court decision, Dobbs v. Jackson Women's Health Organization, the summary of the ruling by Samuel Alito, and the entire dissent by Breyer, Sotomayor, plus Ronald Dworkin's 1992 article Unenumerated Rights: Whether and How Roe Should Be Overruled. For more information and links to the text, please see harshlyexaminedlife.com this is Mark Linsenmayer, staring decisively in Madison, Wisconsin.

0:48 Seth: This is Seth Paskin, whose opinion is only what I had for breakfast in Austin, Texas.

0:54 Wes: This is Wes Alwan, a man of both horizontal and vertical integrity in Cambridge, Massachusetts.

1:00 Dylan: This is Dylan Casey, just looking for judicial integrity in Midland, Michigan.

1:05 Robin: This is Robin Linsenmayer. I am Mark's sister and I'm in Mountain View, California, and I am here conducting an intervention because Mark is a Dworkaholic, and I'm really sorry that those words came out of my mouth just now.

1:21 Mark: I was giving her an example of the kind of things she could say I didn't intend her to actually use. That she did.

1:27 Robin: Well, fits perfectly with the Mark V.

1:31 Wes: I think I'm if anyone's a Dworkaholic here, it's me.

1:34 Mark: But yeah, I could use not reading Dworkin anymore after this. It was.

1:39 Wes: So my intention in picking this Dworkin reading was to give us a framework for reading the recent Supreme Court decision, and one that was related to some of the philosophy of law stuff that we've just done. But also, Dworkin I think is great, and I also happen to agree with him. So it's a little bit of a bias. It's not a little bit of a bias. It's a very biased choice in the sense that I found something that vindicated my point of view and I recommended it. But the virtue of this is just that it's also very, very well reasoned. Peace. And even if you disagree with it,

2:15 Dylan: the virtue is that it's correct.

2:17 Wes: The virtue is it's correct. And even if you disagree, it's still good. Anyway, so I was hoping we would talk about the Dworkin and then given that framework, or whether we agree with it or not, it would help us intelligently read the recent Supreme Court decision.

2:33 Mark: Yes, this is really the fourth in this series, but the third, talking about philosophy of law specifically. And the purpose of this was not just to rehash the same discussions people have had many times and places about the Dobbs, but to reflect on this in light of what we were just talking about with Dworkin's comments on how judges make decisions when supposedly the law runs out, that if you are a positivist like Hart that we discussed a couple episodes ago, then you would think something has to just be written as a law. There's a through line between that and, I don't know if you want to call it originalism, but the conservative jurisprudence of it doesn't matter what you want the law to be.

You just have to say what has actually been passed. And if people don't like that, then the legislature should go and pass something else versus Dworkin's objection that no when judges have to make decisions. I mean, first of all, the nature of words is such that they are general and they require interpretation. So literalism about law doesn't make sense at all. You're always making some kind of leap. And the question is just, are there guardrails? Are there guiding principles that determine how judges make these leaps? And Dworkin says yes, there are principles that are actually part of law itself.

It's not just the judges imposing their own morality. And so when he actually gets around to interpreting this, he says yes, in the 14th Amendment, in the general statements that the Constitution, the Bill of Rights, the other amendments say that we have liberty, that this implies bodily autonomy, this implies being able to make your own decisions in areas of very personal things like marriage, like sexuality, like child rearing. And so it does follow according to the law, broadly construed. Anyway, we'll get into that. So Robin is an actual lawyer.

We were looking when we started doing Hart. Hey, do we know any lawyers to pull on? And like, I should get you on, but we had a long lead time for this episode and you'd already had to read Dobbs for something else. Do you want to sort of say what you want to get out of today or opening thoughts, Robin?

4:38 Robin: Well, you know, I would love to explore Dobbs from a more kind of philosophical, high level perspective because, you know, my reading about all of this has been very practical. You know, what does this mean for people's lives today? So I'm really looking forward to having this discussion with you all, who have a very different take on it than the people that I work with and talk with. Just as a disclaimer, most Judges don't really work in this area that requires significant interpretation. I agree with you. All words are words, so they require interpretation.

But 99% of what judges do, or let's say the work of 99% of judges and the work of nearly all lawyers is really much more practical. There is interpretation, but the interpretation is very limited. Your interpretation of the words on the page, we're talking about just day to day litigation. And this is really something else that most lawyers don't really have their hands in, and most judges don't really have their hands in.

5:41 Dylan: I thought that was one of Hart's points when we were reading him. I think he almost said exactly 99% he might have quoted. A percentage like that of the activity involves effectively fairly straightforward account of how the law is working in terms of what's been written down. And then to the extent there may be conflicting precedents and stuff like that, it might get a little bit more tangled and wrangly. Not that that's the kind of thing that either Dworkin is talking about, or even the kinds of things, as you just pointed out in the Dobbs decision, which goes to why it's legitimate to overthrow precedent. Or Dworkin about the importance of the I don't even know how to pronounce

6:23 Wes: the word stare decisis.

6:26 Dylan: Stare decisis as a principle of law, which in fact Dworkin calls a law, but it's not a law, of course. It's a principle of law, which will be something interesting for us to get into.

6:38 Robin: Well, I guess lawyers would say there's statutory law and constitutional law, which are the words that are written down. And then there's judge made law, which are kind of ways that judges interpret and put into effect those laws. And so stare decisis would be, I guess, part of the realm of judgment law.

6:58 Seth: Seth Opening thoughts I guess just like the last episode. I hope I contribute something useful. And I have a pit in my stomach. I don't really want to have this conversation. I don't want to be a part of it, but I'm here.

7:11 Wes: I wonder why that is. Seth Because I think my view is that we put my cards on the table. I think the Supreme Court decision is just beneath contempt and how bad its legal reasoning is. It's just outrageous, whatever you think about whether you're pro choice or pro life. And I think Dworkin gives us a very persuasive case, and then the Supreme Court decision gives us something that we can rip apart. So given those two elements of this. What's so unsettling about just having that conversation?

7:39 Seth: I essentially agree with the dissent in the sense that, to me, this is indicative of the deterioration of the rule of law. And I had little faith and reverence for the Supreme Court. I have had little faith and reverence for the Supreme Court and for our judicial process for quite some time. This feels to me like it's so blatantly ideologically driven and has so little to do with the fact that a sitting Supreme Court Justice's spouse is a seditionist. And nobody finds that ironic or unsettling. Why would we talk about the decision and the logic and all that when really what we're talking about here is the disintegration of legal norms, of the rule of law and all that.

And so I have a hard time not just like, even now, I'm physically, my back, I'm getting tight. All I can anticipate is that coming out of this conversation, I'm going to be even more angry and stressed out than I am right now.

8:32 Dylan: So your level of fury is physically manifesting, and that's what makes it so uncomfortable.

8:39 Mark: I was surprised how, I want to say political. The dissent was. I mean, I think the dissent absolutely demolished. It was a knockdown argument against the ruling itself by Alito. But in talking about the practical effects, here's what's going to happen. Here's how many people are affected by this. Here's the mortality rate of giving birth versus having an early abortion. It's okay for that to be on the table, whereas we can acknowledge our cynicism and the realpolitik about it. But, you know, we spent a couple episodes setting up this genuine philosophical question of what judges are supposed to be doing.

And I think it gave me a lot better insight. I just read the summary of the decision itself first, and I was kind of following along and like, you know, I'll take your word for it that this past case establishes that, you know, for instance, just because abortion is a medical procedure only available to one sex does not mean, based on these precedents that I don't know anything about does not mean it's discriminatory. And that's a point that then the dissent comes back and says, of course it's discriminatory here and here, and here is the way why don't you actually argue for it?

And then in its appendices, it goes through and refutes, I guess, the references to prior cases on really every individual point that the majority opinion makes.

10:01 Wes: But, Mark, you were mentioning the Practical effects. And I think some would say, and they'd be right, that that's something for legislators. And if the Supreme Court is going to defend something as a right, it has to be because it's a right. And that as far as practical consequences in terms of utilitarian evaluation of the social effects of prohibiting abortion, unless those social effects implicate the violation of a right, the Court may have to defer to the legislature on them.

10:32 Dylan: Well, I thought there was something in between that was going on both in the Dworkin and in the dissent, that it seemed utterly right, that the dissent was taking into account the context of practical effect, because that was in fact intrinsically part of the interpretation of how to interpret law and right, that it changes over time, and that you have to take into account the real world circumstance of the community with regards to that interpretation and both what the effects are, but also how the community, how it sits with the community. So part of that argument is not just one of percentages of abortions and stuff like that, but also about a reading of where the community is at.

And that in part goes straight to the heart of the primary opinions argument regarding the use of history and the use of historical context. And it's arguing that is not the correct interpretation way of understanding law is to try to divine what the framers from 150 years ago of a given law were saying as the primary way and the sole method by which you would understand the applicability of the law or the interpretation of the right. You have to have a more practical, longer lens as part of that.

11:54 Wes: There are different ways to use history. Right. And one of the ways the majority uses history in Dobbs is to say, well, states outlawed abortion. And we can't find this as a historical basis for the idea that there's a right here. But of course, the whole point of the 14th Amendment was to say that there's a due process clause in the Fifth Amendment, but before the 14th Amendment right, the states could ignore that. And the whole point of the 14th Amendment is that states can't ignore the rights spelled out in the Constitution. So that's part of it.

But the other part is, I mean, for Dworkin, you do use history, but you are trying to figure out what the point of the Constitution is, and not the point as in what particular things that the framers think were rights were particular rights, but their overall principle they established in terms of liberty and due process and equality under law and all that stuff. And it's pretty clear that the Constitution and The Bill of Rights includes principles that are very abstract and allow us, at different points in history, to make different decisions about what, say, substantive due process involves, which is to say, what things do we have a right to.

Our evaluation of that may change over time, but the overall principle doesn't. We're trying to figure out what things are really right. And Dworkin's basic idea is that the 14th Amendment implies that anything that ought to be a right is a right. We're not interested in whether such and such a person historically thought it was a right. If it ought to be a right, it is a right and is protected by the Constitution. And the Constitution is just that abstract. Even though it seems frightening to give judges that much power, it is just that abstract for us to draw that conclusion.

13:44 Robin: Well, what do you mean by the ought to be a right?

13:46 Mark: According to who? I guess is the question.

13:49 Robin: I'm not as accustomed to reading these kinds of texts as you all are, so I defer to your interpretation. But I'm not sure I saw Dworkin as saying something that was quite that broad, that whatever ought to be a right is a right. It felt like he was trying to set out a framework. It wasn't just ought to be right,

14:07 Wes: but he almost uses those. I've simplified it a little bit. But in section two, he will say it falls to judges to declare what equal concern really does require and what the basic liberties really are, which is,

14:20 Mark: again, still narrower than whatever you think should be a right. Whatever ought to be a right is a right. I mean, I think people ought to get enough food, but yet that positive, that very simple positive right. I don't think that falls under Dworkin's rubric.

14:34 Wes: Well, what he says is if free and equal citizens would be guaranteed a particular individual right, then our Constitution already contains that right, unless constitutional history has decisively rejected it. So this isn't just up to anyone's whim, because we have principles at work about equal concern and basic liberty, and we have the Constitution as a whole right. We do a holistic reading of the Constitution. We figure out what its purpose is, what the overall principles are, and then we apply those in figuring out what is a right. So when I say what ought to be a right, it's not just a matter of whim.

It's what ought to be according to the purposes of the Constitution. But of course, one can ask that question more broadly, philosophically, morally, it's just like any other ought. Right. Ought murder to be wrong is an answer to that question. Ought something to be right, there's an answer to that question. There's a true and a false to those questions, on my view. But even if you don't accept that ought can be interpreted as having something to do with the overall meaning of the Constitution.

15:39 Mark: The overall meaning of this concept of ordered liberty is what is it for people truly to have freedom? And I think actually maybe they're. Despite my just giving this counter example of being fed, I think there's an openness in that to saying, you know, just like there are governmental remedies that are used, if we say people have the right to vote, well, that means that government has to invest the money to set up voting machinery to make it actually convenient, whatever that means, to not introduce undue burdens to people voting. If you want to say on this interpretation, we have enough food, it's just a matter of some investment to actually ensure.

So ensuring that people have food, health care, et cetera. I think there's an openness in this language to that. We can recognize how that is more of a stretch, though, than a focus on the clear intentions in passing the Civil Rights amendments that for people to be free, they need to be able to determine fundamental things about their lives, right where they're going to live. You can't bar people from going across state lines who they're going to marry. You know, how they're going to construct their families. Even if people think that a Plato Republic, we should take the kids away from all the parents, even if a legislature were to pass that because, you know, parents can't be trusted, like there's something fundamental in this bodily autonomy thing that then extends to familial relations, you know, that.

That, according to Dworkin and according to the dissent, absolutely has to be considered part of the 14th Amendment protections.

17:13 Dylan: And that last point, where you point to an example of, well, what the meaning of a right is, is that a state can't pass a law if all of a sudden they decide to be Platonists and establish a guardianship of the soul. And so all the children of all the citizens will be taken away from the parents and put into schools. A state can't be allowed to make that law because that would violate the rights of autonomy or any number of other things. And that's the point of a right at the federal level, is that states would be prevented from making certain kinds of laws. And in the dissent, they make this point quite strongly.

17:50 Robin: At the end, the Bill of Rights is mostly just limiting what the federal government and the states can do vis a vis the people. So by virtue of not being able to do something, by virtue of not being able to affect a particular kind of law that affects you, you are given the right to not be affected by that kind of law. It's just basically I think preservation of minority rights against majority rule.

18:16 Dylan: I think Wes is pointing to this is why the 14th amendment is so important in terms of constraining states rights with regards to this, the ability of states to pass laws against the citizenry in general because it would violate rights. And that that's an ante for being a state.

18:35 Wes: Yeah, this is why this phrase ordered liberty is used. It took a while to settle the law on the extent to which the 14th Amendment guaranteed all the Bill of Rights or prohibited states from legislating in ways that were inconsistent with the Bill of Rights. So this came up in a case called Palko v. Connecticut where basically the court ruled the double jeopardy that a state didn't have to comply with the double jeopardy rule in the Bill of Rights because the double jeopardy was not essential to a scheme of ordered liberty where ordered liberty just means liberty limited by the need for order in society.

I actually looked up this phrase because I was wondering where did this come from? And I don't think people actually know. From what I could tell. Looking at the secondary literature, the earliest I could find was Charles the first, I think when he dissolved Parliament, used this phrase ordered liberty in contrast to licentiousness. So the court used this concept of ordered liberty to say, well the 14th amendment only says that some of the federal Bill of Rights actually extends to states and that later on was reversed. And the idea became that in fact all of those rights are covered, plus more than that.

So in other words, ordered liberty suggests that the state has to actually have an interest in prohibiting you from doing something. Right. It has to be for the sake of order or to prevent a disorder or licentiousness or something, or to protect the rights of others. So the state can't just prohibit me from doing something willy nilly without having a good reason to do so. That's what I mean by saying if something ought to be a right, then it is a right. It's actually on the state to show why they're going to prohibit you from doing something.

20:21 Mark: It seems like it follows, for instance from Dworkin's point of view that bigamy, a three way marriage absolutely should be allowed. People should be able to set their families up as they see fit, unless this is being done in a way that systematically as might be well be the case is that that only happens in sort of cult like situations where people are being deprived of their liberty by being included in this. You know, it's a couple that takes in this 14 year old is our third or whatever. But then in that case, like that concern could be addressed by a more focused exception than merely saying marriage is two people.

21:02 Wes: Yeah. When I say the state has to have a good reason. Right. As Dworkin points out, the state can have all kinds of reasons beyond the rights of others. You know, the protection of the rights of others to regulate something. Right. So the state has an interest in protecting fetal life. That's what Roe says, that's what Casey says, That's what Dworkin says. You don't often hear that in the public debate, unfortunately, but that's well established. And it doesn't have an interest in protecting fetal life because a fetus is a person with all the rights and interests of a person.

It has that interest more in the way that has the interest of protecting endangered species or works of art or things like that. So a state could tax you and use those taxes for a museum. So in other words, liberty doesn't just mean saying, oh, you can't tax me or infringe on my liberties in certain ways to advance these interests, but actually they can. So that conception of the balance of the interests of the state, again, that's where that word ordered is important. It's important to think about the balance between the interests of the state and then the rights of the people and the extent to which you can restrict behavior to serve those interests.

22:06 Dylan: Part of that goes with the claim that the Constitution is framed to at some level maximize individual liberty.

22:15 Wes: Yeah. In ways that don't undermine the public order, don't undermine the public good or the rights of others to such an extent that.

22:22 Mark: Well, so nobody's going to take debate on talking about bigamy for more than explicitly for a second.

22:28 Wes: Sorry, I meant by implication that bigamy is not as clear a case as Dworkin said. There is some interest in regulating the moral environment of a community. So, for instance, not allowing abortion in the third trimester or at least allowing states to prohibit it even if the fetus is not a person in the third trimester. Of an interest in the concept of what the inherent value of life, which ultimately is about the moral fabric. To some extent you can regulate behavior on your reading of what the moral or states can. Right. Legislatures can. On their reading of what the moral fabric should be. There are a host of other issues with bigamy too. Right.

23:07 Dylan: We can maybe have a separate episode on bigamy because I think it completely depends upon what you understand to be the function of marriage and the contractual arrangement and what the state's interests are in marriage in particular and the state benefits regarding marriage. Right. There's Nothing to prevent 3, 4, 5 people from having a relationship right now that they call a marriage. There's nothing at all that prevents that. And what is prevented right now in most places is that you have the sanctioned benefits of being married to more than one person.

That's typically what is not allowed. And then there'd be the question of whether or not you are married to. Whether it be individually or with multiple people to minors is another issue. Right. I mean, throwing in a 14 year old is a completely different variable to throw in there. And there are public interest reasons why you would maybe have a law against that.

24:00 Robin: As a lawyer, I instinctively recoil when someone tries to argue for the application of a legal principle that if applied consistently, would lead to results that feel very distasteful, like state sanctioned bigamy. That's something that doesn't feel like courts would be comfortable with. And so articulating a legal principle and saying, judge, you need to apply this concept here. The next question you get from the judge is, well, if I apply this concept here, wouldn't this lead me then to. To endorse bigamy or to strike down state laws that prohibit bigamy? And you don't wanna be in the position of saying, well, yes judge, and that would be fine. So you have to, I think in making a legal argument, construct it in a way that puts up parameters that prevent distasteful outcomes from naturally occurring.

24:58 Dylan: And Robin, is the distasteful outcome there that if you're a lawyer making that argument and you're asked that question, well, doesn't it mean that you're going to have strike down all these state laws regarding bigamy? Is the distasteful part of that you've got a giant amount of precedent that has been well established both in terms of law and in terms of how that law reflects culture that you would be going against. And so it's a gigantic hill to climb. You're asking a lot. Or is the distasteful consequences more like the reason why you would have laws against bigamy itself is that you would say, well, there's other social consequences that if I actually allowed bigamy in my law that I don't like.

25:44 Robin: I guess it's both more the latter. I mean, Practically, I mean, there's three things. One, if I'm litigating a case, I want to win that case. You know, if we're talking about abortion rights, I want my requested outcome in this abortion rights case. And maybe I wanted to kind of apply to abortion rights cases more generally. But I'm not litigating bigamy. I haven't even thought about bigamy, and I don't want to take that on. And yes, it's distasteful to think that there's a mountain of precedent that you have to overturn. But I think more fundamentally, when you bring up the term bigamy, to many people, there are probably people who support bigamy, and that's great.

But I think to many people and to the judiciary in general, the idea of striking down state laws that prohibit bigamy is distasteful. You don't want to make an argument that opens that door where you're taking on not just the case in front of you, but suddenly you're telling the judges, yes. And if you adopt this, you have to strike down state laws that prohibit bigamy, and you have to do X, Y and Z, and who knows what the world's gonna look like. Judges don't want to go there.

26:51 Wes: I want to say that we have a bigamy problem, that Mark has tried to marry us to two different controversial issues. But that would be unfair. But I just want to, because this is important. I mean, I think the idea of something being distasteful, again goes to this concept of ordered liberty, where it's not just the free for all. We have to think about whether allowing some behavior or right would be ultimately self undermining right. Because if the result is disorder, this kind of goes to Kant on autonomy and moral principles. We can't legislate a moral principle that would defeat the very conditions that would allow it to be implemented. So we can't be so free that society falls apart, because then no one is free. So there are limits. And that concept of order imposes those limits. And we always have to think about what they are.

27:40 Mark: Dworkin describes what judges should be doing as something different than what Robin is saying, that lawyers actually do, that judges are supposed to have a theory of how the law fits together. And they're supposed to think big, they're supposed to think broad. It seems like the conservative judges in this suit are trying to do more what Robin says lawyers are doing. They specifically say this is a sui generis issue. In fact, it does not go with those other bodily autonomy things. Because it involves another person. They don't say person, but something that its personhood is in question and that that is unique among even different types of marriage. You know, I said you should be able to live where you want. What does that actually mean?

28:24 Dylan: You know, it means you can live where you want.

28:26 Mark: Well, but it doesn't mean if you can't afford to live in a city, the government can impose rent controls or allow, as in where Robin lives, allow people to, like, live in trailers on the street. Like, there are practical things that go into living where you want that need to be actually worked out. And in fact, another thing we'll talk about that Dworkin brings up is that the opinion about when a life begins is so fundamental that he wants to call it a religious opinion.

28:55 Dylan: Right.

28:55 Mark: So it should be a freedom of religion issue. Freedom of religion issues are not.

28:59 Wes: It's not an opinion about when a life begins. Of course it's a life, and of course it begins. It's about the inherent value of life.

29:05 Mark: Yes, that's a good clarification, and we'll lay that out. But that these things should fundamentally be decided by the individual. But traditionally, you know, freedom of religion issues, where things stop is when someone else will be affected. And I think the freedom of the family issues would be the same thing that if you could say if your religious practices involve you hurting children, if they involve you performing human sacrifices, but, you know, strict, you know, drug therapies or, you know, there are lots of things one could argue, and that would be at least the point at which you would want to say this is no longer up to the individual.

Even the freedom of religion is an individual thing. This is up to the legislator of that area to figure out. And so the majority here wants to put abortion in that category to like Roe v. Wade. Roe v. Wade was like, we're not going to weigh in a personhood. That's a philosophical argument people have not settled. They're probably not going to settle anytime soon. We want to weigh the various interests involved. The state is going to have an opinion about that. So they have a potential interest in unborn life. And then the individual who might have the abortion or they talk about the doctor specifically.

So the majority is ostensibly doing the same thing here by saying we're not going to get in this philosophical mess. That's for legislatures to figure out.

30:22 Wes: They're going to say something completely bogus, which is that a ton of right to privacy precedents, including precedents regarding contraception or interracial marriage or things like that do not apply in the case of abortion because of the state interest, which is completely bogus. Right.

30:39 Dylan: And Thomas points that out.

30:41 Wes: Right. And Thomas points. Thomas is the only one who, by Dworkin's definition, would have, quote, unquote, integrity, right, because he realizes that, in fact, the right to privacy does apply, and he's just rejecting the right to privacy, whereas the other justices are trying to have their cake and eat it, too. You can't just ignore the precedent on right to privacy just because abortion involves a state interest of fetal life. You have to do exactly what Roe did, which is weigh the state interest of fetal life against the right to privacy and the derivative right to reproductive autonomy and all that stuff.

31:14 Robin: Just briefly back to the First Amendment religious concept that I think Mark just mentioned. I know there are these lawsuits that have been filed in the last few months. I think there's one in Florida and one in Kentucky. The one in Florida, I think, was filed by rabbis and religious leaders. The one in Kentucky is filed by women saying that the Dobbs decision and the state laws prohibiting abortion that have come out of it in their states violate their religious freedom because consistent with, for example, I think in the Kentucky case, there are women who have frozen their embryos, and they may be required to pay to maintain those frozen embryos forever because destroying them, letting them unfreeze, would be considered murder. And so in that state law, they're suing based on the idea that these state statutes violate their religious freedom.

32:06 Seth: We talked about that on the last episode, because that's exactly the circumstance that my wife and I are in here in Texas.

32:13 Wes: And Dworkin will say there is actually home for the abortion right under the First Amendment, if you accept that fetuses are not persons, which by implication, everyone does in fact, accept, including the conservative justices, because if fetuses were persons, they would have to prohibit abortion at the federal level. They couldn't say it's up to the states if they thought fetuses were persons. So they acknowledge the very thing implicitly that Dworkin is saying, which is that the interest in fetal life is not based on the personhood of fetuses, but on the inherent value of life.

And then in the third trimester, the fact that they feel pain. Right. So we can prevent cruelty to animals because they feel pain in the same way. You know, at a certain point, fetuses arguably do have their own interests if they can feel pain. Ultimately, this question of religion, Mark's point of human sacrifice, if fetuses are persons, your religious Convictions don't override that personhood. But if this is about the inherent value of life, that's a religious question. And people who feel differently about that can make different decisions, including when it comes to abortion, it's not to be enforced.

33:18 Seth: Yeah, Dworkin's just a terrific writer and a really smart thinker, so I appreciated that. But I think there's a naivete about his characterization of religious conviction here, his use of the term religious conviction and this idea that these are deep matters, that this is strictly a matter of conviction and not a designed cynical political strategy. It was that part of it that when he was talking about how people hold these convictions and that it's inherent in the way they view themselves and so forth, that sounded nice. But that's not strictly speaking, the only motivation that's taking place in these debates.

33:57 Wes: Someone might say, I'm Catholic, I believe in the fetuses are persons, or at least that there's, you know, they have inherent value. And you would say there are more nefarious motives there.

34:08 Seth: I would say if you look at the history of how anti abortion advocates turned it into a political issue for the purpose of mobilizing a certain segment of the population, you will see very clearly that it's got nothing to do with the inherent value of life.

34:26 Wes: What is their motivation?

34:27 Seth: Well, it actually originally the history of the evangelical movement, starting way back with Pat Robertson. They were trying to find an issue that they could mobilize a core evangelical Christian part of the population round. And they tried first with education in private religious schools and the idea that these schools had to do with tax exempt status and some other regulatory things, and it wasn't sufficient to mobilize their base. But essentially the goal here is to fundamentally break down the distinction between church and state. People believe that the United States is a Christian nation and the use of the abortion issue is fundamentally tied to that belief and this statute.

And if you look at some of the other things that are going on, and if you look at the rhetoric of some of the politicians that support this, they're explicitly talking about trying to implement or deregulate statutes that maintain that distinction. And that's why I was apprehensive. Robin, you were talking about the Jewish religious groups that are doing it. The state laws that prohibit abortion in the way that they do in the states that have passed them absolutely violate the religious freedom, if you will, of Jews in the way that they view abortion and the weight of the mother versus the fetus and so forth.

And I thought, well, that's obvious. But are any Jews going to be brave enough, especially in a climate of violence against minorities, or is anybody going to be brave enough to do that and invite another wave of, you know, violent anti Semitism?

36:01 Wes: I want to respond to the other part of what you said, which is because I think even if the motivation is to establish religion at the state level, right, to break down that distinction, there still has to be an interest among some Christians in the inherent value of fetal life. Otherwise they couldn't be animated by that issue. That wouldn't be a Christian value of the sort to be implemented at the state. So there's a reason why that works. Even if it was a cynical political exploitation at one level, there's a reason why it worked, which is that people have strong religious opinions about just that sort of thing.

36:34 Dylan: I take your point, Seth, because one way I would phrase what you're saying is that the forces at play are really forces against a understanding of a liberal form of government, and they're effectively more fascist. They're effectively more about a particular kind of control that ought to be had. That's the kind of thing that in the last paragraph of Dworkin's article that he basically says if Roe gets completely overturned, that's exactly what's happening. I mean, his last paragraph to me was weirdly prescient. I mean, he wrote this in 1991. Is that right?

37:10 Seth: I think it was 92.

37:11 Dylan: And he says it will be disappointing but not intolerable if Roe is amended in some way, as I have been discussing. We'll get to that. But it would be intolerable if Roe was wholly reversed, if the constitutional right of procreative autonomy is denied altogether. Some of you already think that recent appointments to the Court and recent decisions by it signal a dark age for the American constitutional adventure, that this Symposium should have been convened as a wake, not as a celebration. I hope that your bleak judgment is premature, but it will be confirmed spectacularly if the Supreme Court declares that American citizens have no right to follow their own reflective convictions in the most personal, conscience driven and religious decisions many of them will ever make.

37:54 Wes: I agree with all that, and I agree with basically everything works. But I have a less sinister reading of the motives of the opposition. So I do think they just have a different opinion. I think they've convinced themselves, as the majority opinion in Dobbs shows, they're willing to engage in sophistry and self deception and just bad legal reasoning. And that ought to be condemned morally. Just that that is outrageous in and of itself for people to be that so motivated that they can't even do their jobs, basically. Well, that's motivated by this. But I do think that they just have strong opinions about fetal life and religious convictions, and they've convinced themselves that they're not establishing religion by doing that. I think Dworkin convincingly shows that they are.

38:36 Dylan: That's where this stare decisis, stare, stare decisis. That's where that whole discussion in both the majority opinion and the response is so impressive and interesting. And then even the aspect that is reflected in Dworkin, the way in. I think that the dissent is just incredibly convincing on this point about the way in which the judgment is bad judging with respect to the way in which our laws are made and our laws are judged. And you're right about that, Wes, that it could easily be just that they have committed sort of the most heinously bad act as judges is to judge based upon their personal convictions and figure out a way to formulate some sophistical argument to get their own way in that way. The strategy of, quote, unquote, packing the court with such people worked. Yeah.

39:34 Wes: And I think it's intellectually dishonest, but it's still self deceptive. They're engaged in self deception. And doublethink, I think, is, you know, I want to do a. Put a bookmark here for a future episode on self deception, because there's a big philosophical literature on that and how it's possible, what it means, and it speaks to a bunch of other very important philosophical issues. But in this case, yes, I think, obviously intellectually dishonest.

39:56 Mark: Well, I was surprised how much dissent called that out explicitly, that it is not written in a very sort of technical, scholarly style, at least in its introduction, that there are parts of the Alito decision that also are a little more casual than I would have expected. But for the most part, it is at least trying to appear like it's doing traditional reasoning. And the dissent gets down to that. You know, that we're going to go through the precedents that majority opinion has cited one by one is very. Not quite to the extent of Seth describing this as a result of a conspiracy of theocrats, but, you know, calling out in a kind of cynical way what the majority is doing just very blatantly. That sounded more in its introduction, particularly like an opinion piece, like a political writing, than a dry legal treatise.

40:49 Wes: I want to say here for, like, conservative listeners who think we're just being lefties, which is what we're going to be accused of. It's not really the case. I think if you listen to all of our abortion and then law episodes, you see that we're trying to evaluate this on the merits and it's not just about one's ultimate conviction pro life or pro choice. This is about legal principles and constitutional interpretation and legal reasoning as well. So I think people ought to read at least the summary of Dobbs. I really think they should read the Dworkin as well, but they should give some thought to whether it's really a defensible argument.

41:26 Mark: Well, let's do that in part two of this discussion. Come back next week. If you are a Partially Examined Life supporter, you'll see it's already there in your feed or will be very, very soon. Otherwise, go to partiallyexaminelife.com support, Become a Supporter, and you will not have to wait until next week. See you then.