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

0:07 Mark: This is the Partially Examined Life Episode 306 about unenumerated rights we're going to talk more about Ronald Dworkin's 1992 article, Unenumerated Rights, whether and how Roe should be overruled, and I'm sure bring in more specifics from the Dobbs v. Jackson Women's Health Organization court case particularly. We should say a lot more about the dissent, which is more of an actual philosophical treatise, whereas the main decision is more well, that's just what the law says. And we've sort of laid out Dworkin's point. The way that we've described it so far is that of course abortion is going to be covered because the 14th amendment is stated in very broad and other parts of the Constitution are stated in very broad idealistic terms that invite the Justices to not just insert their personal moral views, but to draw on a moral concept of liberty, of autonomy, of freedom and equality really are the fundamental ones.

To then cast a wide and changing net of what is going to count as a right deserving special protections going forward. But actually Dworkin gives a much more sort of technical thing by just saying, actually the concept of unenumerated rights doesn't even make sense. There's not a distinction between enumerated and unenumerated ones.

1:31 Wes: So that's in the fourth section.

1:33 Mark: I I thought this was in right the first section. This is like the first thing he says in the whole article. But start where you want to start.

1:39 Wes: Well, he's giving his thesis, but he doesn't defend that until Section four when it comes to unenumerated explicitly defend that. But the first three sections, mark you kind of have already summarized, and we talked about it a little bit, just this idea that, you know, Bill of Rights contains a lot of concrete specifications of rights, but it also includes some very abstract principles. And then the 14th amendment is a great example of that. And that has been interpreted historically as including not, you know, when you use the phrase due process, some of that's about fairness and about how the laws are applied.

But historically, and there's a lot of court precedent for this, it's also been taken to cover something called, quote, unquote, substantive due process. So anything related to ordered liberty, basically just making sure that the government doesn't infringe on basic freedoms. And then ultimately, his idea in Section two is that this is very Dworkin right, is that the Bill of Rights is actually setting out a set of principles, a network of principles, as he calls it, that defines a political ideal involving a society in which the citizens are both free and equal.

There's three components to that. And the first one I've already my paraphrase of that is that anything ought to be a right is a right protected by the Constitution. And then the second is that you expect to see overlap between equal protection clauses and due process clauses. And that's important because one of the criticisms of Roe is that it's picking and choosing. It's finding many textual homes in the Constitution. And it looks fishy to say, oh, we can just gather a bunch of different textual evidence from different places and kind of conjure up rig up a right to abortion out of it.

But that's a misrepresentation. We should actually see various textual homes. So in three, he goes into this, what he calls the revisionist effort to say that the Constitution doesn't mean what it says. And I'll leave that to someone else to get into that.

3:35 Dylan: But I took that section on revisionism to be taking on Framer's intention theory. I mean, this is going to be an argument about what do you mean by said at the end? Dworkin I think he sums it up pretty well. He's explicitly against any notion of Framer's intention theory because of the reasons of the strength of the abstract notions in the Constitution itself, and that that means that they ought to be read in the way that we would understand them. In the last paragraph, he says many of the Framers undoubtedly had different beliefs from mine about what equality or due process requires, just as my beliefs about that differ from yours.

They thought that their abstract commands about equality and due process had different legal implications for concrete cases from the implications you or I think those abstract commands have. But it does not follow that they meant to say anything different from what you or I would mean to say. If we use the same words they did, we would normally use those words to say not that government is forbidden to act contrary to the speaker's own conceptions of equality and justice, but that it is forbidden to act contrary to the soundest conception of those virtues.

All the evidence and common sense suggest that is what they meant to say as well. They meant to use abstract words in their normal abstract sense. If so, then strict attention to speakers meaning only reinforces the broad judicial responsibility that the revisionists hope to curtail. So Dworkin sort of turns this idea of what did they mean to say? Against a Framer's intention theory and say they said exactly what they meant to say, and that does not include trying to interpret at that time what was in their brains. It's what they said, and it means exactly what you think it says.

5:23 Robin: I love this part. I thought this was the most interesting part of the article. As somebody who's kind of lived adjacent to these kinds of conversations for 30 years or so, since I went to law school, I thought this was really interesting. It feels like his point is that these textualists, or originalists, as he calls them revisionists, are essentially gaslighting the rest of us by saying and convincing everybody that they are true to the text and that people who interpret liberty in a more expansive way, for example, are going outside of the four corners of the Constitution or believe in some sort of like, living, evolving document, to the point that even people who put themselves in that camp would also describe themselves that way.

And I love how he just flips that whole conversation and says, no, no, no, they've convinced you that you're going outside the plain meaning of the text, but you're not. You're squarely within it. I thought that was really the most interesting part of the article to me.

6:24 Mark: I was trying to connect this to Wittgenstein on language, the private language argument. Just that meaning is not something that is in your head. And so getting at what did the framers mean is not a psychological question. It is, Wes, as you were describing in the last episode on Dworkin, it's a matter of interpreting according to these public meanings. And so if the public meanings of abstract words are such that they say, reflect on current community standards, reflect on the spirit of the law, I want to say that open endedness is built into general abstract terms already. And so the abstract term is within the text. I love the way Dworkin puts that.

7:07 Wes: When we try to understand assertions, we have a set of interpretative principles that we apply. And figuring out what's in someone else's. There are linguistic pragmatics, but it's not a principle to say, all right, I'm just going to deduce what was in someone's head. And that's the interpretative principle. Language is language, and words have meanings, and the way it's used is important. So the way Dworkin puts it, this antique list of particular demands, that's not a basis for interpretation. And so it actually, ironically gives the court more power to decide on their whim what is and isn't a right. We need actual principles to make principled decisions and lists and framers intentions and all that stuff does not give us interpretive framework to make meaningful interpretations of the text.

7:57 Robin: And I think he also talks about how he imagines hearings for judicial nominees should go down rather than the nominee who's to going being questioned by members of the Senate. Just saying, I'll do what the law tells me to do. I will follow the law. I am committed to following the law. I think in Dworkin's conception, they'll say the law is animated by certain concepts, and here are how I understand those concepts, and let's have a deep conversation about them so we can all be more transparent about what's motivating this individual nominee and whether we're comfortable approving that person.

8:29 Dylan: I love that, Robin, that I think it's right to observe that you would conduct hearings differently based upon reading Dworkin to understand how a judge judges and understands their judging, then the moment they said, well, I'm just going to follow the law, is you throw a flag on the play and say, throw that person out, because that's not what judges do. Exactly.

8:51 Robin: You know, I haven't watched that many confirmation hearings, and some of the ones that I have watched are Supreme Court. And so they're a little bit of a different category. But I think the people who are asking the questions, we all understand that the judge's personal views of liberty and equality and all these other concepts come in to the decisions they make. So there are questions that are designed to elicit that kind of information. But the people who are on the hot seat, the nominee is trained and encouraged to say, I'm going to follow the law, I'm going to follow the law. None of those concerns are relevant. And so you really, it's impossible to engage In a deep conversation about that,

9:31 Wes: Dworkin is saying, you should tell us what your interpretative framework is, what you think the principles are at work. Right. You should be able to speak to that. And this goes towards section four and why he thinks unenumerated rights, that the distinction between those and enumerated rights is unintelligible. It makes this assumption that you have these rights that are on a list. The standard there is just reference rather than, you know, we don't have to use interpretation to figure out what they are, which is, of course, false right. We have to figure out whether flag burning falls under freedom of speech.

And then we have these unenumerated rights, which the judges are just going to make up under one view. But that's not the case in all cases. Judges are making, you know, Supreme Court Justices are making judgments. And then when we make a judgment, we figure out what particular falls under a concept, what rights actually fall under concept. For the 14th amendment, and the concept of substantive due process and equal protection, it's not making up rights. It's figuring out what rights are implied by or fall under those principles. And that's a matter of interpretation.

And to do that, you have to look at the Constitution as a whole. This speaks towards the myth of the given. It's not just given to you as a list. You're always applying a theory. And that theory must take into account the whole Constitution and its purpose and the and the society that it's trying to achieve.

10:56 Robin: Right. So we have this due process clause that says, no state shall deprive any person of life, liberty, or property without due process of law. So that raises two questions. What is liberty? Is it simply just my freedom to be and not be in jail? Or does it encompass all of these other substantive rights? The liberty to make choices about bodily autonomy, the liberty to have a personal realm, to marry the person I want to marry, for example. And then also, what process is due? If the state is going to infringe or place a burden on one of those rights, what standard does it need to meet to be able to place that burden? And so those words are just there. And Dworkin's right, the word liberty is just there, the word due process is there, and it's up to the judges to determine what liberty really means.

11:41 Mark: The missing element in this description of interpretation is that it's not just the Constitution that they're contemplating. Right. The legal theory is supposed to incorporate all of law. The Constitution is obviously the core of that, again, sort of thinking in comparison to the philosophy of science discussions that we've had around this, that, you know, if you're coming up with theory, you've got your core.

12:02 Dylan: You can't.

12:03 Mark: Well, apparently you can. Penumbra is the past decisions. And so I just listened to a lecture this morning on natural rights, enumerated rights and the Ninth Amendment by Michael McConnell from 2008, who was saying, when the people came up with the Bill of Rights, they were very keen to. Not by enumerating, like there was a discussion regarding the First Amendment. Should we include assembly in there explicitly? Not that they wanted the government to be able to put down assemblies, but like, is it not implicit in just speech itself? And if we go in adding an extra detail here, shouldn't we then add extra details in every other Amendment?

Shouldn't the Bill of Rights be very, very, very long? Shouldn't it be 50 things? Because as soon as you start making an enumerated list, it implies that anything that's not on the list is not a right. And so that's explicitly why they came up with the ninth Amendment to say, and there's other stuff that's protected here. Don't think that something's not explicitly listed here that is not also included. But that is something that the Supreme Court has routinely ignored. And so it would be very surprising for a judicial nominee to say, my theory of rights and bring in the ninth Amendment specifically, because that has, according to the data that their legal theory is supposed to encompass, has essentially suppressed the ninth Amendment.

The ninth Amendment is too vague to make any work out of at all. So there's room there for saying, you know, by saying, I'm just following the law. I think part of that has to be, I'm just going to follow the precedent properly interpreted. I don't know, do you guys feel like, well, precedent is so broad and people have said contradictory things, so it's sort of like justifying something from the Bible. The old adage says you could find for anything you want to support, you probably find a quote somewhere in the Bible to support your point. And so saying, I'm going to rely on the law, which includes precedent.

Well, you know, both the majority and the dissent both say they're doing that here, so that's useless.

14:01 Robin: I think the point about the ninth Amendment is good because to the extent that you want to really rely on the framers intent, like broadly construed by passing the ninth Amendment, the framers are explicitly saying, oh, and by the way, guys, there's more out there. So it feels like by virtue of Putting that down on paper, they're telling people and judges in the future that being really parsimoniously bound to the plain language of the text here is really not enough.

14:32 Dylan: Yeah, I agree. But there is something like when you read the ninth Amendment, you wonder, well, why do we have to have the 14th amendment or any number of other amendments that explicitly call out rights?

14:44 Wes: Well, the 14th gives us a little more information on what those unenumerated rights would be.

14:49 Dylan: Well, no, that's my point. Right. Is that it turns out that the ninth Amendment is a really good reminder, but for certain things, it's just not strong enough. For certain challenging social issues, it ends up not being enough that you have to enumerate it.

15:03 Wes: You got to bake these all together into a constitutional cake, take Ninth Amendment, sprinkle in a little 14th and go elsewhere. And then you get. You get your result.

15:14 Seth: I think Dworkin makes the point too. It's someplace. It's not that these are complementary, but strictly not co extensive. He's like, there's overlap and that's fine. There's no reason why there shouldn't be overlap because they in many cases enforce and support each other. So the idea that a single article is covering a unique sphere and that they need somehow to be taken together to aggregate a whole is not valid.

15:42 Dylan: I forget where it is exactly. But he has a funny kind of put down for like the kind of ocd tendencies of somebody who needs to have every individual portion of the Constitution fit in its own bento box of the Constitution, such that neither piece overlaps the other.

16:01 Wes: The way he sums up all of this up in Section five is just to say this idea of the framers intentions and trying to rely on a list actually gives too much power to judges, ironically. And what we need is interpretation. We can't abdicate the responsibility of interpretation. If you take the Constitution seriously, we gotta look at principles and figure out what rights fall under them. That's not a mechanical test, that's a matter of good judgment. And then he spells out some criteria for good judgment of the overall criterion is integrity being principled, being consistent with not just precedent but constitutional arrangement, and then consistent across cases. So we need judgment.

16:44 Dylan: I really like emphasizing the point in section five. That question of integrity, that question of judgment and the arguments that are entailed in that is actually a stronger constraint on the interpretation of law than an enumeration is that an enumeration is far weaker than the kinds of really a kind of holistic judgment about it that this all fits Together, because it ends up tying the individual pieces of law and the individual pieces of the Constitution to each other.

17:19 Wes: Yeah. And the idea that, you know, your test is, as in this majority decision, well, what did people in the 19th century think, as opposed to what does liberty require? Consider how stupid that is to say we got to. Instead of figuring out what the principles are and what falls under them, we're going to go back and look at what people thought back then.

17:39 Mark: That's part of stare decisis is looking to common law, that if you could root something, the idea, even with the wording of the Bill of Rights is as if there are these natural rights and the government shall not take these away. So it's trying to get at what are the natural rights. Dworkin gets very specific starting on page 387, where he gives two examples of supposedly enumerated rights, one of which is flag burning. Flag burning seems like it's an instance of freedom of speech. But of course, the freedom of speech thing doesn't mention flag burning in it.

No. And then he gives the equal protection clause, the 14th Amendment against gender based discrimination, again, doesn't mention gender specifically in there. Even I don't think the word discriminate, you know, due process. It's a stretch, but still that's been taken as a straightforward. Well, that's an enumerated right. It's part of the equal protection that's in the 14th Amendment. Whereas this right to privacy and hence abortion is taken as unenumerated because it is more of a stretch. Even if you want to say that the 14th Amendment involves this liberty and equality, and those are very general, abstract terms.

Well, you could still say those terms are more general and abstract, and so it requires more interpretive heft to apply them to abortion than it does to apply, in the simplest case here, freedom of speech to flag burning. Did you get at least, if not that there are strictly two categories, enumerated and unenumerated, that there's a continuum of interpretation is evolved in everywhere along this continuum. But more interpretation is involved. A stronger philosophical theory, you know, to get to abortion than it does to rule out flag burning, for instance?

19:21 Wes: Well, I think he's making the case against that though. Right. Because in flag burning you can always introduce an intermediate principle as well. Right. So the right to symbolic protest is part of our First Amendment right. And then flag burning is symbolic protest. So you could talk about the 14th Amendment and then the right to privacy and then the right to reproductive autonomy. And you know, you can keep drilling down on more and more specific principles before you get to the particular. And you can. So you can put as many intervening principles in there as you like, but that doesn't make one result any different in substance than the other, any more

19:58 Mark: constitutionally rooted than the other. Yes, this is what Dworkin is arguing against, but conventional legal wisdom. I don't know, Robin, when I was talking to you on the phone, you seem to think that. No, of course, it's a different kind of deliberation to talk about flag burning than to talk about abortion, even if you agree with the liberal take of both of these.

20:15 Robin: Yeah, I mean, his point is good. Almost everything's open to. Requires one step of interpretation or three steps or ten steps of interpretation. I think he brings up this example of in the Constitution somewhere, like the right to quartering troops or something like these. Very few, very specific rights in the Constitution where there's just no interpretive step, where you just read the words. And that's what happens. I think, instinctively, as a lawyer who's been trained, perhaps like gaslighted for the last 30 years to believe that some rights are enumerated and some aren't, Dworkin's thoughts here really strike me as wrong.

But on the other hand, I really don't know why. And the more I think about it, and I reread it last night, I feel like at some level it's because I've just been trained to see a distinction between the enumerated right, like freedom of speech, and the non enumerated right, like substantive due process. But I think my view on that is a product of being just groomed or trained in this world where we see this distinction rather than an actual principled understanding of how these rights manifest in the Constitution. So what I'm saying is, basically, perhaps Dworkin is opening a window to me seeing something in a different way unveiled.

21:34 Mark: Those law professor groomers.

21:37 Robin: Not what I meant to say.

21:39 Wes: Mark is very, very good at being

21:42 Dylan: provocative, saying something you didn't. You didn't mean to say.

21:45 Robin: I never noticed that.

21:46 Dylan: To get.

21:48 Wes: Yeah, you might have noticed that, being his sister. Should we talk about how all this applies to abortion? He pivots to that in the Section six.

21:58 Mark: Sure. You know, we got a lot of flack in our first abortion discussion for you're not talking about bodily autonomy. You're not talking. You know, we were concerned with the ethical question, is abortion okay or not? Whereas the legal question, should it be outlawed or not? Is a separate question at least. And most of the things we've read sort of are trying not to, including Dworkins, is trying not to presuppose an answer to whether you personally, if you're facing a situation where you might have an abortion or not, whether you should do that. Like his conclusion is this should be left up to the individual. That's the core of bodily autonomy. In fact, it would be against. It's out of the state's hands to deliver the solution to the philosophical problem. It's certainly not out of philosophers hands. You know, if they. Philosophers could tell you what they think all the time.

22:44 Dylan: For the record, I don't agree that we didn't talk about bodily autonomy. In fact, I think that if you listened to that episode and then came away with a conclusion, you just didn't even listen to the episode because huge sections of that episode were about that very question. In fact, one of the papers was primarily the point of that paper was that the question of abortion was one of bodily autonomy. And so to have come to a conclusion that we didn't talk about it or that wasn't a primary theme of that episode is just wrong. I question whether you listened to the episode.

23:19 Seth: This is a common theme also, Robin, that people will criticize us and say, you didn't do this or you didn't do that. And it's either we didn't grind their particular axe, or we didn't grind their axe enough or. Or we did, but because we didn't do it in the way that they wanted us to, we didn't do it.

23:36 Mark: You know, when I read the dissent to the case, I felt like, oh, this is maybe what that person that made that comment just got done reading or something, because that hits, you know, right from the beginning. This is a question of equal protection for women and women being denied full participation in the process and their bodily autonomy, et cetera, et cetera. Even Dworkin doesn't put it with that spin.

24:00 Seth: No, he doesn't. And I found that interesting. So I don't know where we are in the text. And by the way, Robin, your presence has denied me a joke slash sarcastic comment I was going to make about we're just continuing in a long line of white men talking about the rights.

24:19 Robin: Talking about women's rights.

24:20 Seth: Talking about women's rights. Yeah, it's actually one of the things that is striking about the dissent. And I know we don't want to necessarily get there, though, but that. Do you remember we read. I don't remember which paper it was from the last abortion episode, but they were talking about, I think it was Shapiro said that, you know, the two sides are kind of talking past each other, that what's actually at issue is not clearly articulated and understood. And I think Dworkin provides a way to get at the root of that. But when you look at the majority opinion in the dissent, I feel like we're still talking about two separate things.

The dissent does address the arguments that the majority makes, but they're also highlighting these couple of other issues, considerations, I should say. And when I first read Dworkin, I thought, oh, well, he's actually laid out what I thought was a really compelling way of viewing this. But it doesn't help adjudicate between those two different tacks that were taken in the Dobbs decision.

25:18 Wes: So with Section 6, he's setting us up with this idea that, you know, a woman has a right to the control and use of her own body, so. Or therefore she has a right to abortion unless the government has some legitimate and important reason for prohibiting it. And again, this goes to substantive due process and ordered liberty. I mean, I think it's easier to see if you take the question of personhood or even the rights and interests of some entity out of the picture. It's obvious, right? If a state legislature prohibited you from removing cancerous tumors from your body, we would understand that as a violation of the right.

And of course, we wouldn't say it's up to state legislatures. Of course, we would say the Supreme Court would be able to say, based on the Constitution, that that's a violation of liberty. So I think we should keep that in mind. You know, the question of personhood and rights and interest to the fetus, the state interest in protecting fetal life complicates all that. That's the reason why it's complicated, but it doesn't take away this idea that under normal circumstances, we have the right to the control and use of our own bodies, and that is firmly established in the Constitution.

But the important distinction that Dworkin goes on to make here is between the two different reasons that we might prohibit abortion. And one is just to talk about a fetus's rights and interests, even apart from personhood, right? Just because it might feel pain or something like that, it might have rights and interests in that sense. And then the other is about this question of intrinsic value which ultimately leads to religious questions. And those are two different reasons. And it will turn out, according to Dworkin, that this really isn't so much about the rights and interests of the fetus as it is about this question of intrinsic value.

26:54 Robin: I think as a non philosophy person who's always been pro choice, but I'm also not neutral about abortion in the sense that I don't think abortion is desirable, at least for myself. I don't see it as fully ethically neutral. And I haven't really interrogated myself as to why. If I don't think of fetus as a person, why would I be uncomfortable with abortion in any circumstance? And I like the way he articulates it because it really does help people like me who don't attach personhood to a fetus, certainly in the early stages of development. It helps explain to me what the source of my overall somewhat level of discomfort really is.

27:41 Seth: But let me ask you this, Robin. If you don't think about the fetus, if you think about a child or an adult in some sort of circumstance, does the reasoning resonate? So do you think that in discussions about assisted suicide or the death penalty, or if we said, well, there's inherent value in human life, even if it's suffering, so assisted suicide is outlawed, does that clarify any of your intuitions or does it help?

28:12 Robin: I think if we were to talk about the death penalty, that helps clarify as well, because I don't support the death penalty under any circumstances, despite, you know, any dull example that somebody can pull up. You know, I do think that concept of there being some kind of inherent value in human life that we respect as a society, irrespective of the rights of that potential life or the rights of that life. I think it helps me get to a place where I understand what's motivating me a little bit more. I think same thing with assisted suicide, except I generally don't really have the same qualms about assisted suicide.

28:48 Wes: We should make a note here too, that Dworkin agrees, and this is in row that in the third trimester, it is more than about the inherent value of life. It does become about the rights and interests of the fetus because of the capacity to feel pain. And in Casey, this is defined as viability.

29:04 Robin: But I think assisted suicide is a little bit different because the person whose rights and interests are directly affected is making the decision. But the death penalty and abortion rights are different because the person or the potential life whose rights and interests are affected isn't making the decision. So I guess that's why my views on assisted suicide would be probably a little bit different.

29:22 Seth: I'm tempted to branch out again into my polemic and I'll try to. I'll refrain. I Don't think if you look at the evidence of the way we behave either as a society or individually, that there's any case to be made that we have any belief in the inherent sanctity of human life, certainly not of other forms of life.

29:41 Robin: I'm not arguing with you in terms of how we behave as a society. To me, this struck a chord because it helped me understand my low lying discomfort with abortion in some cases, despite the fact that I am strongly pro choice.

30:00 Seth: I totally get it. I'm the same way. I mean, I'm the caricature of the pro choice liberal. But at the same time, you know, my wife and I spent six years, five years like, and money and pain and all that to try to carve a child out of all of the opposition that nature's bounty could give us. And we wanted to have a child. Anybody who wants to have a child and is unable to, or if you've gone through a miscarriage and giving devolving power to the states to make that decision to criminalize the act of having a miscarriage, anybody who can't even recognize that fact literally has no concept of what trying to have a child or suffering from not being able to have a child is like.

And it makes me angry and disgusted. And you can hold those two things simultaneously, like where it's very difficult decision to have an abortion and you can think just like I think suicide, like in the sense of a lot of people, it's like the measure of last resort in some sense. But at the same time, as much as I would try to avoid it if in my life or counsel people to consider it only in the last resort, I wouldn't want to be in a position where, say it's not an option because people don't make this decision lightly. That's the perspective.

Oh, you know, sexual promiscuity, unwanted pregnancy, it's a convenience thing. Anybody who thinks that's the way the decisions get made is just wrong.

31:27 Mark: I'm trying to find the technical terms that Dworkin introduced about the two kinds of rights. Ones that are based on persons and ones that are derived. Right.

31:35 Wes: The interest in life derivative for the ones that are based on rights and interests. Persons, he thinks is a confusing term. So if it's based on the rights and interests of an entity, because animals can have rights and interests, but in some cases, you know, an animal may not have rights, but it can have interests that are protected by the law. Right. They can have a law against animal cruelty.

31:54 Dylan: Mark is pointing to a very Specific pair.

31:57 Mark: Detached. Detached, yes, that's the other one. So it's detached from a particular person. And this is what he says, that the interest in life in general that you guys are talking about, of comparing it to concern for endangered species or

32:11 Wes: something, he uses the term inherent value more. He kind of discards that. So those are the same. What I've been referring to is the inherent value portion of this argument is the same as the detached.

32:22 Mark: But yeah, yeah, because it's detached from a particular individual that has rights. And you could imagine that there would be if we really were in a situation of the Handmaid's Tale. The premise to that is that we're in a. Like, births have, for whatever biological reason, fallen to almost nothing. So in that situation, maybe the state has an interest in saying no birth control whatsoever because it really is a remarkable feature or, you know, everybody has the duty to give birth to as many kids as they can because our population is about to die out.

You know, maybe we're at a post Holocaust situation. The fact that I think that those things in particular social circumstances fall under this alleged state interest should show that I'm actually pretty uncomfortable. I didn't like Dworkin's account of the state having this legitimate interest in us taking life seriously in this way. I kind of prefer the Rawlsian liberal take of. This is a hard philosophical question. And not only is it up to individuals to make the decision whether to abort or not, but it is not the state's interest to force you to make a reasoned choice is the kind of stuff that Dworkin says.

So he's up for waiting periods and things like that, which I think we saw were not implemented in a way that seemed justifiable to me, but he seems okay with that.

33:43 Robin: But isn't Dworkin trying to articulate. I mean, I think when he wrote this article, the Casey decision was under consideration. So they talked about the Casey decision in Dobbs, and the Casey decision came out of Pennsylvania and basically was a series of state restrictions on abortion rights. And it upheld, ultimately, the Supreme Court established the undue burden standard, and it upheld waiting periods, and it upheld parental notification, and it struck down spousal notification. On the ground, I think, and I haven't read the Casey decision in a long time, but on the ground, I think that spousal notification, in fact, put too much of a burden on a woman's ability to make a choice because of domestic violence concerns and related issues.

So it feels to me like he's writing this piece At a time when the Supreme Court is at a moment where things could tip in one direction or another. And I think people were concerned that Roe might be overturned in 1992 when Casey was decided, because it could have been. Casey could have looked like Dobbs. And it feels like he's trying to articulate a theory that the Supreme Court can take with it and apply in the Casey decision to uphold abortion rights, to nonetheless go the direction that he feels like, like the court might want to go, which is to allow for certain limited burdens on a woman's right to choose.

And I think this is kind of a prescriptive piece. He's trying to hand it to the court and say, here, take this and run with it and uphold Roe.

35:15 Wes: You know, it was already there in Roe. Roe had already said the state has a legitimate interest in regulations based on its interest in fetal life in the third trimester.

35:25 Mark: It has an interest in fetal life overall. It's just in the third trimester. That trumps the woman's bodily autonomy.

35:32 Wes: Right.

35:33 Mark: The principle is there throughout.

35:34 Robin: Right. But by Dworkin's conception, the court could take that core of Roe and still say, look, we are going to impose some limited burdens on women earlier on in the pregnancy in order to further that interest that we have in potential fetal life, that detached interest or whatever you want to call it. But nonetheless, we still are going to uphold the core of Roe, which is the right to make that choice.

36:02 Wes: As Dworkin puts it, you can encourage responsibility and reflection. You can't coerce people into doing anything. But you can. That's part of the whole waiting period thing. And, and all that. So.

36:12 Mark: And you have to. I don't know if there are laws on the books about this.

36:14 Dylan: I don't know that.

36:15 Mark: But I've certainly heard about, like. And you have to look at the ultrasound and see, look. And have somebody point out, look. Their little fingers there. This is certainly. If you get trapped into a. You think you're going to an abortion clinic or something, and it's really a pro life group that is a set of fake abortion clinics just to try to convince you. It seems like there's room in Dworkin's scheme here for those sorts of shenanigans of you're not really making a reasoned choice unless you have all the data, unless you listen to an Enya song while looking at the digital representation of here's what we think your baby is going to look like at age 3, unless it's hitting your soul in that way.

You've not made a fully reasoned choice. Can we just give the conclusion, I think we've already given it, of what Dworkin's article is? Right. The real issue in Roe v. Wade, as we've said, is not whether the fetus is a person, it's the amount of weight that should be given to this concern, this legitimate concern, he says, that the state has, in making sure that life is not taken lightly, something

37:20 Wes: like that in the first two trimesters, because in the third trimester, the fetus does develop interests by virtue of being able to feel pain. And that ultimately, to him, is a religious issue, and therefore one that can't really trump the right to reproductive autonomy and more generally, the right to privacy.

37:38 Robin: So we'll see how that plays out in these lawsuits that have been filed by the groups of rabbis, and I think a Unitarian minister joined one of them and the Jewish women in Kentucky. I mean, we have this case from a couple years ago, this Hobby Lobby case, where this company, Hobby Lobby, didn't want to pay for employees who were receiving birth control under the Affordable Care act health insurance. And I guess Hobby Lobby had to somehow pay for that. And the decision, the Supreme Court allowed Hobby Lobby to opt out on the grounds that compelling them to pay for someone's contraception violated their religious freedom.

There's been a series of these decisions. The court has made very clear, strong decisions, consistently upholding people's right to free exercise of their religion, even if it causes trouble for others. So we'll see how that plays out and whether that principle is consistently applied, I guess, horizontally to these cases that

38:38 Mark: it's supposed to be applied. Well, like, you know, the example of the Jews suing about this. But the fact that the Jews, the Jewish clergy, you know, the fact that they are an established religion, to back that, you know, Dworkin is making the claim that I think he thinks is backed by recent precedent. I'm not sure about this, that what counts as religious is closer to a subsection of what counts as philosophical. So being a conscientious objector, he mentions against all war. You know, that that counts as a religious thing, whether you're doing it for explicitly religious reasons or not to be a conscientious objector.

You don't have to declare, I'm doing this because this such and such church employ. It's just inherently, since it has to do with these deep views about the value of life. And he distinguishes that from merely like, I don't like this particular war. I don't think this is being fought for. It's not a just war. That's a political thing. So those are both philosophical positions, but he wanted to say that religious philosophical positions, the ones that are subject to that sort of protection, just have to do with the fact that they are principled stances about these fundamental issues.

But they could be secularly based but still count as religious.

39:48 Seth: Yeah.

39:48 Wes: So he gives us a good criterion for what is religious. It doesn't require God, and it's not a matter of, like, subjective importance. So this is religious because I'm so, so passionate about it. It's a matter of questions of the inherent value of life that speak to the overall question of the meaning of life, because those two things are connected, which I think is a good, Pretty good criterion. Sorry, Seth.

40:09 Seth: No, no, it is pretty good. I mean, it says you don't have to have a personal God, but I think his criterion is good. Again, I would just point out that Dworkin's conception of what constitutes a religious belief or religion is not what's at play in the broader sphere. In fact, I would question whether anybody outside of Dworkin holds that view.

40:29 Wes: He's trying to give it a basis in the First Amendment as well. It's still there in the 14th Amendment for him.

40:34 Seth: But I'm not disagreeing. What I'm saying is I have no idea how important Dworkin's view is in the broader. It's certainly not at play. There was some exchange I read. I wish I had noted it, where as part of arguing in front of the Supreme Court about something, we're talking about symbolism and the symbolism of the cross and the just absolute ignorance that I think it was Alito at the time showed about what the cross represented and how it functioned as a symbol. And it's like it's just a cross. Like it doesn't mean, you know, it's something maybe about having the cross or the Ten Commandments in schools or in public buildings or something like that. He just couldn't understand why anybody would take offense. It's just a cross.

41:20 Wes: Is it the iron cross or the crystal cross? I don't know.

41:26 Dylan: When I was nine years old, I had a babysitter and I started flipping her off and I kept on saying, it's just a finger, it's just a finger. And she was so upset, like the most intolerable nine year old kid that you had to be babysitting. That's what that sounds like to me.

41:44 Seth: Yeah. Well, no, my point is that this is exactly going to the root of this question of what constitutes religious view and so forth, is that, let's just say this, I will be very interested to see, just as Robin said, like what are going to be the boundaries? Are they going to be able to be consistent? Because if they come to a well documented genuine conflict on abortion or any other significant issue like this where it can be demonstrated that there are differing religious views, they're going to have to figure out a way to deal with it. And it's either going to be they're going to pick one religion over another or they're going to have to abandon the concept.

It's going to be unpalatable for the people who are trying to push this notion of religious freedom and they're going to be convenient interpretations about what does and doesn't constitute as a religion and what constitutes a majority, or we're getting close to talking about state sponsored religion. There's a lot of really delicate and interesting things that I think are going to happen here. And I know you all think I'm the guy who thinks that the worst possible outcome. And I spend too much time reading articles in the Atlantic and the New Yorker to support my radicalized dystopian liberalist views, but I'm telling you, it's going to be hard to be in the middle and to be level headed about any of this.

42:54 Mark: Well, you should find an article that supports your alarmist views, just like Wes found this article to support the views he came in here with.

43:03 Seth: Happy to share for another topic.

43:05 Wes: Let me defend myself on that a little. I was pro choice coming into this, but I was far more sympathetic to the opposing point of view than I am. Now that we've gone through this process of both reading the morality articles, reading the philosophy of law articles, reading Dworkin, reading this decision, I have learned a lot. It was nowhere near being able to justify my intuitions about this stuff at the level that I found in these articles.

43:34 Dylan: My only closing is that I think that was the first Supreme Court decision I actually read and there's something really cool about doing so. Maybe a separate discussion about what's interesting about reading Supreme Court decisions, but it's worth reading. I have to say I think that the dissent is way more interesting to read, but I would also I think Wes mentioned this earlier, but the Dworkin article is very, very straightforward and I thought was really easy to consume, but also provided to me a kind of deep understanding and real engagement with how we ought to be thinking about our Constitution and about law and the way in which law ought to work that is in line with understanding the country and our society as a liberal democracy.

44:22 Wes: He's a rigorous thinker.

44:24 Dylan: Yes. And I think you see in that a thoughtful and considered and well argued and principled articulation of the features of liberal democracy, especially with respect to one of the branches of government judging.

44:40 Wes: We did also, by the way, read some of Roe versus Wade. Just addressing what you said, Dylan, about this being the first case, but I guess the first case you've read in full or. Yeah, it's an excellent decision. I think it's interesting how philosophical they are. I don't know if you were getting at that, but yeah.

44:57 Dylan: And I guess for me, all of these episodes are sort of one big blur, so I put them all in one thing. But you're right, we did read big chunks of Roe. Yes. How philosophical they are and how you feel like you're reading a judgment.

45:11 Robin: I would commend to any of you who are kind of interested in looking at these issues from a more practical and not a more practical perspective, but perhaps a less philosophical perspective, or anybody who's listening. There's this website called Oyez that records Supreme Court arguments. And so you can go on there and listen to the Dobbs argument. And I did not do that in anticipation of this podcast just because I didn't have time. But the arguments are often for people who don't really have the stomach to read 200 pages of judicial opinion. The arguments are often a lot easier to follow.

Sometimes there's a lot of detailed discussion of prior cases that can get confusing to people, but for the most part, they really spin out the policy implications and kind of you hear the judges articulating where they want the case to go and then either urging the council that agrees with them to further articulate their position, or challenging opposing counsel and trying to get opposing counsel to defend their position or trying to basically destroy opposing counsel's position. So it's a really interesting perspective that you don't get when you're just reading the final opinion.

So I commend that to any of you who's interested.

46:24 Dylan: Robin, is that a general feature? What you just described made me think something that is a little unnerving, but I expect happens on a regular basis, is that the justice has already made up their mind when the case came before them, and then the hearing is a kind of performative aspect, or is that a feature of some cases and not others? Because I would sort of hope that there is a sense of actually trying to come to a decision, as opposed to it being merely a hearing of performance.

46:58 Robin: You know, I can't get into any individual judge's mind. I think judges come into oral arguments with an idea of where they might want to go based on the research that they've done to date. They read the briefs, they have their law clerks do extensive research, you know, so that the legal issue is fully fleshed out in front of them before they get to the oral argument. So I think they have a sense of which direction they might want to go in, but they want to test out that argument by asking hard questions to both sides and seeing how they respond to make sure that there are no unintended consequences of their arguments or inconsistencies in their own arguments that they can't address appropriately. So is there a performative aspect to it? I really don't want to upset. Speak to that.

47:49 Mark: Not like Senate, these congressional hearings where the judges are asking questions rather than trying to create their sound bite.

47:56 Robin: For the most part, I don't think the judges are trying to create sound bites. The judges have life tenure. They're not elected. They're not worried about people giving them campaign contributions. I think they really are trying to test out their arguments at the margins. Sure, there may be sometimes more of a performative aspect to it than others, and I really don't want to speak to that or point fingers, but I do think that judges do come in with a genuine interest.

48:25 Mark: All right, let's wrap up. There's certainly a lot more we got out of reading the text and especially the dissent. So we're going to. Without Robin, some subsection of this group will record a Part three that you can get if you are a Partially Examined Life supporter, a citizen, you'll get that next week. For our next episode, we are reading two articles by G.E. moore as part of the run up to reading Wittgenstein's On Certainty. The two articles that Wittgenstein was specifically responding to are Moore's Defense of common sense from 1925 and his proof of the external world from 1939. Come back for that and feel free to reach out to us through our website, partiallyexaminedlife.com or through Facebook or Twitter or whatnot to let us know what you would like us to cover. Thanks, everybody, and good night.

49:13 Dylan: Good night.

49:13 Seth: Good night.

49:14 Robin: Bye.

49:14 Wes: Good night.