Talks with Authors: What It Means to Be Human

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Chayila Kleist:  Hello and welcome to this Federalist Society Webinar call. Today, October 13, 2023, we’re delighted to host an installment of our “Talks with Authors” series on What It Means to Be Human: The Case for the Body in Public Bioethics. My name is Chayila Kleist, and I’m an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s program as The Federalist Society takes no position on particular legal or public policy issues. Now, in the interest of time, we’ll keep our introductions of our guests today brief, but if you’d like to know more about either of our speakers, you can access their impressive full bios at fedsoc.org.

 

Today, we’re fortunate to have with us Professor O. Carter Snead, who is the Director of the de Nicola Center for Ethics and Culture and a Professor of Law at the University of Notre Dame Law School. He’s an expert in public bioethics and governance of science, medicine, and biotechnology in the name of ethical goods, and his research explores issues relating to neuroethics, enhancement, stem cell research, abortion, and end-of-life decision-making. He’s authored more than 40 journal articles, book chapters, and essays and is the author of the book being discussed today. Prior to joining law faculty at Notre Dame, Professor Snead served as General Counsel to the President’s Council on Bioethics. He also led the U.S. government delegation to UNESCO and served as its chief negotiator for the Universal Declaration on Bioethics and Human Rights, adopted in October 2005. He also served as the U.S. department’s Permanent Observer to the Council of Europe’s Steering Committee on Bioethics, and finally, in 2016, he was appointed to the Pontifical Academy for Life, the principal bioethics advisory body for Pope Francis.

 

Also joining us today as our moderator for the conversation is Professor William Saunders, who a professor focusing on human rights, religious liberty, and bioethics at the Catholic University of America, where he also serves as director for the Center of Human Rights. Additionally, he’s a Law Fellow with the Institute for Human Ecology, Professor and Director of the Program for Human Rights at the School of Arts & Sciences and Co-director of the Center for Religious Liberty at the Columbus School of Law. Professor Saunders also serves as a Senior Fellow with the Religious Freedom Institute and is an Affiliated Scholar with the Pellegrino Center for Clinical Ethics at Georgetown University School of Medicine. He’s President of the Fellowship of Catholic Scholars and a member of the boards with the International Association for Catholic Bioethicists, the International Right to Life Foundation, and Institute on Religion and Democracy, and the Society of Catholic Social Scientists. And I’ll leave it there.

 

One last note. Throughout the panel, if you have any questions, please submit them by the Question-and-Answer feature found at the bottom of your Zoom screens so that our speakers will have access to them when we get to that portion of today’s webinar. With that, thank you all for joining us today. Professor Saunders, the floor is yours.

 

Prof. William L. Saunders:  Thank you, Chayila. I just want to say for the people listening about the format, we are going to have a good discussion about Professor Snead’s book, and we’re going to explore certain themes and talk about its application in particular public policy arena. But we’re going to open it up for questions at the end, so the way I envision this going is we’ll talk about the book and then apply its analysis, as the book itself does, to an area, disputed area, public policy, particularly end-of-life decision-making. I do want to say that, just to supplement what Chayila said about Professor Snead, is he was just named the Charles E. Rice Professor of Law at Notre Dame Law School. Yeah, he has an endowed chair now. He’s been a professor, of course, before, but now, he’s the holder of an endowed chair.

 

And also, I want to say about this book we’re going to talk about a couple of things that I hope will whet your appetite of those listening -- I, of course, have read the book, and I think it’s a tremendous book, which I’m going to probably have all my students read, but I’m not the only one. It was named one of the ten best books of 2020 by the Wall Street Journal and one of the ten best books to understand the abortion debate in the United States by The New York Times in 2022. In the book review in the Wall Street Journal, Yuval Levin said that “this is among the most important works of moral philosophy produced so far in this century.” So we’re in for a treat. It’s going to be fun talking about a complicated subject. Carter, good to be with you.

 

Prof. O. Carter Snead:  Great to see you as always, Bill. Thanks for having me on.

 

Prof. William L. Saunders:  So Carter, this book is aimed at correcting an omission or a misemphasis in the debates about bioethics. And again, I -- just a little bit of context. We’ll give more as we go along, but anybody listening is at least aware, I think, of the debates in the United States over cloning and stem cell research. Those are now about 20 years old, but they could easily come again. And Carter was very involved in those as the head lawyer for the President’s Council on Bioethics. So what kind of problem or omission or misemphasis is this book trying to get at, Carter?

 

Prof. O. Carter Snead:  Yeah. Thanks for the question. So the book is entitled What It Means to Be Human: The Case for the Body in Public Bioethics. And in some ways, the title of book points to the origin story of the book. You and I worked closely together 20 years ago on these important questions involving embryo research and cloning, and in other contexts, we’ve worked on questions connected to abortion and end-of-life decision-making, other areas of what I call public bioethics, the point at which we concern ourselves with the governance of science, medicine, and biotechnology in the name of ethical goods.

 

It’s not simply bioethics is a field of intellectual or academic inquiry. It’s actually a species of governance and of interest to people who are interested in The Federalist Society’s wonderful programming, mostly lawyers and people that are interested in public policy. What we’re talking about here is public policy. That’s what you and I worked in, the point at which the law comes into contact with these questions. And something that always troubled me and that I never quite understood and really wanted to explore in writing this book is something, I think, that you and I have talked about a lot, which is to say we noticed in our work that the law in some respects, especially in public bioethics, sort of persistently fails to protect the weakest and most vulnerable, and why is that. That was a question that I kept coming back to.

 

And so, when I took up the question in the book and I started researching the book and I did use sort of three paradigmatic — what I call in the book, “vital conflicts of American public bioethics” — the disputes, the legal disputes over abortion, assisted reproductive technologies, and end-of-life decision-making — I wanted to know why does the law go wrong in so many respects, not just in terms of failing to acknowledge or protect the unborn child but even to fail to protect human subjects of research in many contexts. And in fact, public bioethics itself is a sort of story of reactions: government reactions to scandals, government reactions to very high-profile examples of exploitation and harm to the weakest and most vulnerable people — children with intellectual disabilities, the sharecroppers in Tuskegee, and so on. These are examples that I talk about in the book also. And what I came to -- the conclusion that I came to was the problem in American law and in also law that applies in other countries as well -- where the law frequently goes wrong is in its first order of conception of what it’s meant to do.

 

Law is meant to protect and prompt the flourishing of persons. Right? I think that’s a fairly uncontroversial description of what the aim of law is. But if you think about that idea, law itself must operate according to a presumption or an ex-ante conception of what persons are and what constitutes human flourishing, not in a sense of when life begins or those kinds of bioethical questions, although it relates to those questions. The fundamental question of who we are has to be answered at least operationally for the law to even be intelligible. If the law is to protect persons to promote their flourishing, the law has to have an ex-ante conception of what persons are.

 

And so, the question I wanted to explore in the book is in these particular contested areas of bioethics. What are the assumptions of the law, not about individuals but what are the assumptions of the law itself about who we are and what constitutes our flourishing? And what I found in my research is that in these areas of vital conflicts, these other areas of public bioethics, the law frequently has a very narrow and incomplete vision of human identity and human flourishing, which causes the law to go off the rails and not only fail to protect adequately certain vulnerable populations but even obscures them from view. The law can’t even make sense of different kinds of populations because they don’t fit the narrow -- artificially narrow paradigm of what a person is.

 

Prof. William L. Saunders:  I think it would be great if -- to spend a few minutes of you talking about -- because I like this in the book. You review historical developments and show kind of how do we get where we are because a lot of times in discussions, people will forget the how we got where we are.

 

Just a brief example was John Keown spoke here at Catholic University this week, and he talked about the decriminalization of suicide. And it was for particular reasons, and it was not in any sense an endorsement of suicide. But if you forget that history and you just look at the question, well, suicide is not illegal then, seems to follow assisted suicide -- assisting suicide should not be illegal. But that’s -- but you can’t reach that conclusion unless you forget the context and the history that led to that spot. So I found it very interesting in your book for you to review the history of the kind of -- how the legal structure for dealing with bioethics developed. Maybe you could hit some of the high points you’d like for the listener to hear.

 

Prof. O. Carter Snead:  Sure. Yeah. Absolutely. So the first chapter of the book is called, “A Genealogy of American Public Bioethics.” And it starts -- and there are different ways to mark the beginning of American public bioethics or bioethics more generally, but the general consensus is that really around the time of the late ‘60s and early 1970s, there were a series of developments, scandals that provoked a sort of rethinking about what the role of governance was vis-à-vis biomedical science, the practice of medicine, and the applications of biotechnology. And around the same time, in the academic setting, in response to a sort of perceived growing distance between the technical expertise of physicians on the one hand and their sort of -- the human role of the physician and the doctor-patient relationship and a perceived sort of increased objectification of patients by doctors as they became more technically proficient led to a rethinking in the academic context of the doctor-patient relationship and led to the rise of the emphasis on informed consent and autonomy as a kind of counterweight to what was perceived as this difficulty that arose in the doctor-patient relationship, but -- and that led to the founding of different kinds of interesting centers — like the Hasting Center, which I’m a fellow, and the Georgetown Kennedy Institute, I think, is where John Keown is a fellow — to grapple with these questions about really the clinical context.

 

But at the same time, as I said, there were these very high-profile scandals that prompted a reaction on the part of mostly the elected branches of government but, in some cases, the judicial branch as well that gave rise to the body of law that I describe as public bioethics. And I think that there are three signal events in that time period, in the late ‘60s and early ‘70s, that illustrate both how the process of scandal and reaction gives rise to this area of the law but also lays out kind of the complexity of the questions and identifies some aspects of public bioethics that are perennial, that continue to this day -- patterns that still continue. And the three signal events that I talk about -- two of which are familiar to a lot of people; the third of which, I think is not as familiar. The first event is the publication in 1966 in -- by Henry Beecher of an article that detailed 22 different research experiments involving human subjects undertaken -- they were anonymized in the article, but it later came to light that they were the most prestigious and prominent research institutions in the world, including the research arms of the federal government. And these were research protocols involving 22 cases of very vulnerable people, and in only 2 of the 22 was there even a mention of the idea of informed consent. These were instances of dark forms of exploitation and taking deep advantage of vulnerable folks who can’t really speak for themselves, can’t defend themselves.

 

The most notorious, in my view, is what happened at a school called the Willowbrook School on Staten Island, which was a school for cognitively disabled children. And in one instance, documented by Dr. Beecher, these children were deliberately injected with Hepatitis and -- to study the progress of the disease. It was a deeply inadequate process of informed consent. There was some conversation with their guardians, but it was not sufficient to justify what was done. There’s another example in which live cancer cells were injected into patients in the New York Jewish Chronic Disease Hospital, patients who were suffering from dementia who didn’t know what was going on. There are cases involving prisoners, cases involving enlisted servicemen and women who were subject to the chain of command and whose autonomy was dramatically restricted as a result, and there were -- people got sick. People died.

 

It was an extraordinary, scandalous set of behaviors that were documented by Beecher. Beecher himself, by the way, was fascinated, or initially, by the trials at Nuremberg and the so-called Nazi doctors cases in which these doctors performed horrific experiments on the people inside these concentration camps. And then, at the trials, they were convicted, many of whom were put to death. At the trial, they defended themselves on the grounds that this was just victor’s justice, and the United States also doesn’t have a code of ethical conduct for the conduct of medical research involving subjects. And they were right about that. In fact, the first such code was enacted almost immediately after -- or during that trial in response to that testimony.

 

And so, Beecher thought, wow, if that can happen in Nazi Germany, what are we doing here in the United States to keep -- to make sure that we protect vulnerable human subjects in research. And he did this research. He came out. He discovered all these deep problems, published the article, and it sent sort of shockwaves through not just the medical and research communities but the general public.

 

Around the same time, in 1973, it came to light that the Public Health Service, the United States Public Health Service, was -- had, in the 1930s, gone to Tuskegee, Alabama, in Macon County, Alabama, a very poor, predominantly African American part of the South in which syphilis had -- they had the highest concentration of syphilis in the population of almost anywhere in the country. And these researchers from the U.S. Public Health Service went into Macon County, Alabama, and decided they wanted to conduct what’s called a national history study to -- of syphilis to watch the progress of the disease untreated in a particular population. So they enlisted 600 subjects. Three hundred of them had syphilis. Three hundred of them didn’t.

 

But at no point did they ever tell these poor African American sharecroppers what they were doing, what they were testing for, what the purpose of this was. They would give them small amounts of money. They would offer them lunch. They would give them rides. They would, in some cases, offer for -- expenses for burial, but -- and most shameful of all, in addition to that deception, was in the middle of the 1940s when antibiotics became standard of care for treating syphilis, they didn’t give them any antibiotics. Not only did they not give them antibiotics, but there seems to be credible evidence that they colluded with the local health authorities to prevent them from getting antibiotics from any source.

 

And interestingly, when confronted about this -- and this went for 40 years, by the way. This went on for 40 years, and -- this systemic deception and manipulation and exploitation, and it came to light in the early 1970s when a very low-level STD researcher at NIH found out about it. He reported it to his superiors. They ignored him. And he went to the press, and it was published in The Washington Post. And it -- enormous scandal. There was a $10 million civil rights settlement and apologies issued by the United States. And it was a shocking, shameful moment in our history.

 

But when confronted about it, the arguments that the researchers made were almost identical, structurally — the argument — to the arguments that were made at Nuremberg. Namely, we didn’t create this terrible situation. We simply came in to observe it. We didn’t make their situation any worse. Had we not done this, things would have progressed exactly as they did, given the systemic racism and impoverishment and lack of education and so on in this community. And no one was moved by that argument by the Tuskegee researchers nor were they moved at Nuremberg when, in fact, it wasn’t simply the case that these people just passively observed a tragic situation and failed to help. They actually made the suffering circumstances the object and tool of their own research.

 

And the third example that I give is less well known. Around the same time — in 1973, ’74 — it came to light that NIH, the National Institutes of Health, the United States’s principal research funding arm in the U.S. government, was discussing whether or not they should fund or maybe continue to fund — the records a little bit unclear — research involving newborn babies who survived abortions. Right? So these are -- we’re not talking about in utero babies. We’re not talking about fetuses.

 

We’re talking about newborn babies who survive abortions that were then -- that were -- who were then experimented on by researchers, American researchers, in ways that extended their life temporarily during the experiment, that arguably subjected them to additional suffering prior to their demise and ultimately, causally led to their demise. They were dying imminently. They were going to die anyway, which, of course, was the object of the abortion. They were imminently dying, but before they died, they were taken by researchers and experimented -- in some cases, before even separating them from their mother by their umbilical cord. And this created -- this story came out. It created an enormous amount of scandal and anxiety in the American public.

 

In fact, Eunice Kennedy Shriver, sister of RFK and JFK and Ted Kennedy, particularly became animated by this and upset about it. Her daughter, Maria Shriver, who was a high school student at the time, across the street from NIH, at an important Catholic high school in Bethsaida, Maryland, or Chevy Chase, Maryland -- I can’t -- I think it’s Bethsaida, Rockville. I’m not sure literally where it is, but in any event, she — or at the time was pro-life — organized a protest and went to NIH. And NIH director said, “We’re not doing this. Don’t worry.”

 

And then, in reaction to all three of these scandals, Senator Ted Kennedy convened Congressional hearings to examine matters of bioethics, matters involving research involving human subjects, questions connected to Tuskegee and questions connected to this research on newly aborted, newborn, imminently dying babies who would be subject to -- and ultimately culminated in the first statute that relates to -- federal statute -- that relates to bioethics, the National Research Act, in the early 1970s, which created -- was set in -- sort of put in the precursor legal structure for what’s now the governing rules for protecting human subjects in federally funded research and then also created the first national bioethics commission.

 

And so, that whole sort of tableau that I’ve just sketched out for you illustrates a lot of things. It illustrates, first of all, how complex and contested American public bioethics is, vital questions at stake, people bitterly disagreeing on the substance, pro and con, on these different issues. They implicate fundamental questions about personhood and parenthood and the meaning of pregnancy and the objects of research and the search for truth and autonomy and justice and equality. And the reason these issues are so complicated -- it’s not just because they’re technically complicated, but they intermingle and intertwine in a kind of seamless way — good intentions, good objects with, in some cases, deeply dehumanizing, exploitive methods. And they -- one of the other things that we noticed about this, and I’m sure you noticed too, is that a natural impulse is to try to use autonomy and self-determination as the guiding goods to construct a legal solution to this, saying, well, okay. Informed consent is the answer to this problem. We have to secure autonomy, and we repaired autonomy, both because freedom’s important, but we also do it because it’s something that, in principle, people can agree on in a pluralistic society.

 

At least, we can all agree that we should be able to make our own minds up about these hard questions. But what we see from those three signal events is it’s not the failure to maximize the autonomy of those children at Willowbrook or the dementia patients at New York Chronic Jewish Disease Hospital or even the sharecroppers in Tuskegee and certainly not the newborn babies in Scandinavia where the American researchers were doing this troubling research. Autonomy is not the intelligible category that we should appeal to protect vulnerable people who can’t protect themselves, even if they were given the freedom to do so. Right? Sometimes, vulnerability invites protection rather than simply saying, “Let me empower you to make your own decisions.” And so, that led me to certain insights about, well, if that’s the solution, if that’s the legal framework, what does that say about ex-ante perceptions or ideas or conceptions about what persons are and what’s required for their flourishing and for their protection.

 

Prof. William L. Saunders:  So the law -- these scandals resulted in a legal response through the hearings and subsequently, but it’s proven to be inadequate. Or maybe you’d say a word about that. Why has the law not been able to reach a point where we’re able to resolve these contested issues in a, I don’t know, appropriate or not -- in a deeper, richer way than we do?

 

Prof. O. Carter Snead:  Yeah. So the argument that I make in the book is that if you drill down in a kind of inductive way, that is if you do what I call -- and it sounds highfalutin, but it’s not really. I call it -- it’s an inductive anthropological inquiry. If you take a look at the law as you find it, if -- as it lays and you ask the question not just doctrinally — “How does this work,” or, “What are the mechanisms at work here,” or even asking the questions, “What goods does this law mean to pursue, and what harms does it mean to avoid?” — but you drill down even more deeply still, and you ask, “What vision of the person is driving all of this?” As I said before, a lot of people, a lot of folks, even a lot of lawyers think about law as a kind of neutral tool that can be harnessed in whichever direction we prefer, depending on our normative prior points of view. But instead, I argue that the law can’t avoid answering the question and usually does it implicitly without actually acknowledging it -- the anthropological question, that is what is a person; what is human flourishing.

 

And so, the first task is to drill down into the law and say, well, what is the answer to that question. And I take the three examples, the three legal contexts that I mentioned before. But if you -- just to take a brief sort of detour into how that might work, well, if you look at a law and you say, okay, well, the law itself, what’s the law do? The law seeks to privilege and prioritize autonomy as the principal mechanism of protection and advancing the good of a person, a human flourishing. Okay. If that’s true, then what the law must be assuming about human identity is that what’s fundamental about a human being is their freedom and their capacity to make decisions, their capacity to choose among different alternatives and draw upon certain kinds of normative conceptions to make those choices. Okay. That’s certainly true about human beings in the main, and most people have the cognitive capacity to do that, and freedom is, of course, important.

 

But as you and I know, the -- if you look at these cases, the categories of individuals who are being exploited, that framework doesn’t make sense. Take the kids at Willowbrook. Those kids weren’t harmed because they were -- because their freewill was impaired by choices of others or that it wasn’t honored and respected in advance. What happened was you -- they were -- they couldn’t -- they -- because of their cognitive circumstances, because of their disability, they weren’t capable of free choice, cognitive functioning that goes along with it, choosing among different futures and pursuing those open futures. So a tool that tries to solve their problem by saying, “Here’s more freedom,” doesn’t actually give them what they need because that’s not fundamentally definitive of who they are. Free choice doesn’t define those individuals.

 

And so, the small sliver of the human population that has the circumstances and endowments that are necessary to make free choices and impose their will on their environment is a pretty narrow group of folks. And those folks are well protected, usually, by mechanisms that amplify their autonomy and protect their autonomy. But the vulnerable population, like the children at Willowbrook or the newborn babies in Scandinavia or even the prisoners that were discussed by Beecher or even folks in hopelessly impoverished circumstances as the sharecroppers in Alabama were -- what those folks didn’t need was more autonomy. Those folks needed actual protection from exploitation and extractive attitudes of more powerful people who’d come in and prey upon them. And so, the category of human beings is not fully defined by those people who have the cognitive freedom and circumstances to make free choice because there’s an awful lot of people — children, the elderly, the disabled, the poor, those suffering from systemic racial injustice, etc. — who are not capable because of their circumstances or whatever their internal dispositions might be of flourishing merely through the exercise of free will.

 

And so, if you calibrate a legal system that assumes a person is simply coextensive with his will or her will and the human flourishing is defined by interrogating the depths of the interior self to find authenticate, new, maybe transgressive truths and construct them -- construct your world accordingly and pursue your world accordingly -- your goals accordingly, well, you’re going to leave out an awful lot of people. And if you look at the structure of life’s arc and you begin in a state of total dependency, total dependency upon other people, even for your basic survival, and if in a very best-case scenario, you begin a kind of gentle rise along an arc of growing into your powers, and you hit some apex where you’re at the height of your powers, but then, you immediately pivot downwards back into a state of total dependency once again. And that’s in a very best-case scenario. So an anthropology that defines people as coexistence only with their will and defines their flourishing as discovering and pursuing those truths that come from inside really only speaks to one very narrow sliver of a population at very one narrow moment in a lifespan.

 

And I argue in the book that the reason that the -- that anthropology goes wrong is because it fails to take seriously our embodiment. It fails to take seriously the fact that we are not merely disembodied wills and minds, and to define us in that way is to go wrong. Of course, we have minds, and we’re individuated, and we’re particular, and we’re free, but that doesn’t exhaust the definition of who and what we are. We are the dynamic, integrated unity of mind and body, and as living bodies, not a mind that has a body but as an integrated being that is a living body, we are vulnerable. We are mutually dependent upon one another, and we’re subject to natural limits. And that is definitive of our experience, and you see those limits playing a significant role in all those three formative examples that I sketched out for you in the history of American public bioethics.

 

And instead of adopting an anthropological view of the person that takes into account embodiment, what the anthropology that goes wrong is tracks very closely what Charles Taylor, philosopher Charles Taylor, and my colleague Alasdair MacIntyre, after a fashion, and Michael Sandel and originally sociologist Robert Bellah calls expressive individualism that defines the person in that narrow way that I just sketched out for you.

 

Prof. William L. Saunders:  Yeah. I think in the book you have a great turn of phrase where you essentially say the way to -- out of this mistaken road is to remember what we’ve forgotten. Right? And what we’ve forgotten      is that we are embodied human beings, and embodiment brings certain characteristics, which you talk about in the book, which are not really reflected in the law because the law is assuming this kind of paradigm of expressive individualism. So maybe you want to say another word about that expressive individualism.

 

Prof. O. Carter Snead:  Yeah. So expressive individualism was something that Robert Bellah identified in his social science research in the United States.  It -- and published his findings in the book, Habits of the Heart, from the 1980s. It’s a kind of vision, and I give a sort of intellectual genealogy, beginning with -- well, starting pretty far back with Rousseau, and I follow Charles Taylor’s account of the development of expressive individualism — and we don’t need to get into that now — through the Romantic poets and so on, and it kind of changes in the 20th century in response to the sexual revolution and certain kinds of different managerial forms that emerge. And we don’t need to -- that’s -- it’s kind of -- we’d get into the weeds to talk about that.

 

But basically, the idea is it’s a vision of the person that identifies the individual as a kind of atomized individual will. The basic unit of reality is the individual, and individual person is defined simply by their cognitive endowments. It is a dualistic sort of idea with -- that is it separates mind and body and makes mind definitive of the person, and body is sort of accidental and instrumental and can be manipulated and used. And it is -- philosophers would say nonteleological, meaning it refuses to recognize any meaning or guidance in the -- one -- through one’s physical observations of the physical reality to gain insight into normative reality as to what it is we should do or who we are. It’s utterly unconnected to any physical reality that we might encounter. All relationships, all encounters are basically instrumental towards pursuing flourishing within this worldview, which is defined by, first, interrogating the sort of interior of one’s own sensibilities and sentiments.

 

The only thing that’s morally definitive is this sort of inner voice and external sources of information — authority may be useful; it may not be useful — so long as they correspond to what the normative goals are that come endogenously or inside from the individual who formulates his or her own unique life plan and then pursues it in a single-minded way, sometimes collaborating with other people who have similar views. Of course, as soon as the community of interest ceases to be, they would break apart but sometimes encountering other selves, atomized individual selves, in an adversarial way, in relationships of strife. And you have to overbear the will of another. But ultimately, it’s a very lonely, individuated existence -- individual existence, and flourishing’s defined in this sort of narrow way. And all constitutive attachments, all relationships to family, to tradition, to culture, to community, to nation, all of that is purely accidental, instrumental, and used to -- as it’s valuable or discarded as it’s not valuable, including familial relationships, if it doesn’t serve the interior projects of the will.

 

And one thing that’s really important about the kind of normative frame of this anthropology is that there’s no such thing as an unchosen obligation in this framework, that is no one has a claim on my care or concern or action absent some kind of usually prior contractual agreement. It doesn’t have to be formal. But some kind of prior consent on my part. There’s no one who can say to me, “You have to help me by virtue of this relationship that we have,” and that includes parents and children. Right? The notion of family and parenthood is also on the table as useful or not useful within this framework. And you see this play out, again -- again, this is not something I began with as a first principle and then deduced. This is something that bubbled up from looking at the legal structures and texts that I study and found that, wow, okay, so looking at the legal structures, how do we reason backwards to the vision of the person that’s animating this? And in many instances, this is precisely what I found.

 

Prof. William L. Saunders:  So if we remember what we -- I’ve forgotten that -- every human being is in relationship from the moment they’re conceived and certainly from the moment they’re born because, like you said, everyone is completely vulnerable, and you depend on others. And then, whatever context you grow up in, there are some others around with whom you are in some kind of relationship. And for most people -- or maybe not for most people, but for lots and lots of people, it’s in a family and then a community, etc. So if we discover that we are embodied persons in a community, what difference does that make for the law?

 

Prof. O. Carter Snead:  Well, so I go back to the first proposition that I started with, which is to say what law is is -- or the purpose of law is to protect and promote the flourishing of persons. That’s what law is for. Okay? Therefore, you must have a prior conception of what persons are, and if you go wrong, if you -- if you’re confused or make a mistake about what persons are and what constitutes human flourishing, then you’re going to build legal structures that are inadequate to protect people and to promote their flourishing. And so, what I’ve -- what I argue in the book — and I try to show this, using these three different examples — that the law, in fact, leaves unprotected and uncared for significant portions of the human population and why that might be. And so -- and then, the corrective for that that I argue in the book is a kind of where’s the diagnosis? Is it sort of forgetting about embodiment, a forgetting of the body?

 

Alasdair MacIntyre’s the first to use that phrase being “dependent rational animals.” Certain visions are “forgetful” of the body. My answer is you have to remember the body, and you have to reintegrate the notion of the embodied self into our conception of persons and there -- and then, therefore, animate legal structures and protections for the full scope of the human family, including those who can’t -- who don’t -- who aren’t capable of exercising free choice, right, which is a huge percentage of everybody, at some point in our lives, but there are huge portions of the population, as I said, children, the elderly, the disabled, and so on whose autonomy is completely diminished by virtue of those circumstances. And so, what I argue -- what it means to remember the body is to ask the question of, well, what exactly -- if not merely the freedom of the unencumbered will, if that’s not the only thing human beings need for flourishing, and I don’t mean, again, to diminish the value of freedom or the importance of individual decision-making or even the importance of consulting the interior sensibilities one has to construct an authentic future for yourself or to even bear witness against problematic social forms that deserve to be transgressed. Right? There are -- that’s valuable stuff, but that’s not the -- that doesn’t exhaust the full definition of what persons are and what their flourishing is. So I -- what I tried to do is broaden out the concept of what constitutes flourishing for an embodied being in time who is fragile and corruptible and gets sick and dies.

 

And so, I looked to the work of Alasdair MacIntyre. I looked to the work of Charles Taylor and some others, and what I found is, and what I argue is, that persons, as embodied selves, don’t merely need freedom of the unencumbered will. People do need freedom, and they are individuals, and that’s important. But what they also need are what MacIntyre calls networks of uncalculated giving and graceful receiving of persons in these webs of connections to one another who are willing to make the good of the other his or her own good without counting the cost. Okay? And that’s not -- it’s not even possible to imagine surviving beyond infancy or before that without someone who makes your good their good without counting the cost.

 

Parents don’t care for -- and the paradigm for this, obviously, is parenthood -- the parent/child relationship. Right? Parents don’t take care of children because they have a contract to do so. Parents don’t have to have a promise that they’ve -- some kind of formal agreement that predates their obligation to their child. They have a natural obligation to care for their child by virtue of the kind of relationship it is. And in a similar way, a child doesn’t have to earn the privilege of being cared for by his or her parents. Right? It just adheres in the natural relationship itself.

 

So the networks of uncalculated giving and graceful receiving are these webs of people who, first of all, we depend on for our basic survival, for sure at the beginning of our lives and probably at other points in our lives as well. But also, by living in these networks, we learn to become the thing that I normatively argue that we’re supposed to be, which is to become the kind of person who can make the good of another person our own good without counting the cost because, first of all, that guarantees the sustainability of these networks, which are essential for human survival and species survival, but secondly, normatively speaking, I think that’s what human beings, at bottom, are when they’re at their best. People are most human when they’re taking care of one another. That’s what’s definitive of human flourishing is caring and being cared for. And to put it in a sort of -- in a more concise way, I argue that, by virtue of human embodiment, people are made for love and friendship. That’s what we’re here for.

 

And in order to shore up and protect these networks of uncalculated giving and graceful receiving, it requires the practice of certain virtues and pursuit of certain goods, which MacIntyre calls the virtues of acknowledged dependence. And I build on his list a little bit that he articulates in Dependent Rational Animals. But the virtues of acknowledged dependence are, first, the virtues of uncalculated giving, and that includes just generosity, which is giving to the other in proportion to their need, not seeking something in return. It includes hospitality, welcoming the other because he or she is the other. It includes misericordia, which is -- which means taking on the suffering of another person as if it were your own suffering. Those are the goods of uncalculated giving.

 

And then, there’s the goods of graceful receiving, and principal among those is the good of -- and the virtue of gratitude. Right? And that engenders other goods of graceful receiving: humility and solidarity and respect for human dignity and so on, all of which really could be redefined under the egis of genuine authentic friendship.

 

Prof. William L. Saunders:  Well, Carter, I think it’d be interesting if we take this and talk about it in the context of end-of-life issues. You and I spoke briefly. In my opinion, these end-of-life issues are just -- they’re important society wide, but they’re going to explode in magnitude in just a few years as we have fewer children born and an increasing elderly population and more health care costs, etc. So what if we took your paradigm and -- as you do in the book, because I want the people who haven’t read the book yet to realize he does take his ideas and looks at them in several different contexts at the end of the book. But maybe you could say some -- a few words about how that might apply in the end of life and how it might be different from the way we’re kind of looking at now through the law.

 

Prof. O. Carter Snead:  Yeah. Yeah. And thank you for saying that because when I lay out the kind of anthropological discourse of the book and I even talk about the history of American public bioethics, it can seem really abstract. Right? It can seem like, wow, this is just kind of a philosophical or a theoretical overlay. What does this have to do with law? Right? And in the book, the bulk of the book actually is direct application to concrete legal questions. Right?

 

And just to be clear, when I talk about these presumptions about personhood — expressive individualism being, I think, a flawed anthropological premise and the sort of anthropology of embodiment, which I argue is a more complete and more accurate version of what a human being is and what human flourishing — I’m not talking about the attitudes or presumptions of people. I’m not -- directly. I don’t mean people who seek assisted suicide or people who seek or provide abortions or people who use different techniques of assisted reproduction. I’m not talking about what those people think about themselves, how they think about themselves, what their individual anthropologies are. That’s not what I’m talking about.

 

What I’m talking about is the presumptions of the law itself. Right? And that’s -- there’s a big difference between -- I’m not criticizing people in this book. I’m criticizing the law, which has to accept or occupy a particular point of view about anthropology, as I’m using it, not in an academic sense but in sort of the original sense of what it means to be a human being. And so, the question is you look at the law; you take the law; you drill down, and you say, well, what vision of the person is animating this legal structure, not what do people who do these things think about themselves. That’s what Robert Bellah was doing. That’s not what I’m doing, just to be perfectly upfront about that.

 

But I do -- so when I look at these legal questions, and you’re asking about end-of-life decision-making. In Chapter 5 of my book, I take up the questions around death and dying, and I take up the questions of end-of-life decision-making and the legal structures we have in place for that. And then, I have a section on assisted suicide. And I look very concretely at the American law, the American legal authorities, and I try to do what I described earlier, which is a deductive anthropological analysis of those. I say, okay, here’s what the law says. Here’s how it works. Now, let’s work backwards from that to ask the question of what vision of personhood and flourishing is driving this.

 

And so, I’ll take the example of assisted suicide to take up your question. And what I do is I take the paradigmatic statutory and regulatory scheme of Oregon on assisted suicide, and say, okay, let’s look carefully at the Oregon law and sort out what assumptions are embedded in that law about human identity and human flourishing, such as that it determines what the mechanisms or solutions are to the problems around the question of assisted suicide or the problems to which assisted suicide is one proposed answer. And the reason I picked Oregon, by the way, and as you know, maybe -- and probably a lot of your sophisticated listeners know, that the way state legislation frequently works is once you have the sort of initial statute that is enacted and adopted, as we saw in Oregon, the subsequent states that adopt laws on assisted -- laws allowing or even prompting assisted suicide, usually they start from that paradigm, and they maybe make little refinements, but it’s basically a cut-and-paste job. And you’ve seen that -- you see that throughout the country in those jurisdictions -- those 10 or 11 jurisdictions, whatever it is now, that have legalized assisted suicide. They almost all look exactly like the Oregon law. There are some differences there --

 

[CROSSTALK]

 

Prof. William L. Saunders:  Sorry to interrupt you, but -- and the Oregon model is looked at internationally as well. The UK is right now looking at a version of the Oregon model but go ahead.

 

Prof. O. Carter Snead:  Yeah. So if you look at the Oregon law -- and I have my book right here. You can see the lovely -- the paperback version on sale now at amazon.com.

 

Prof. William L. Saunders:  My version.

 

Prof. O. Carter Snead:  If you look -- so I took the -- after providing some historical background to the question of assisted suicide in the United States, which probably tracks close to what Professor Keown talked about and sort of the decriminalization of suicide but maintaining the laws against assisting in suicide, and then, there was, of course, the famous Supreme Court challenges, the Glucksberg and Quill cases, which become very important to modern jurisprudence because it sure looks like the Glucksberg case has -- is now the dominant paradigm for the Supreme Court’s mode of approaching substantive due process claims. We saw that in Dobbs. And so, that seems to be the paradigm that now the Supreme Court has gravitated towards.

 

But then, I turn to the question of Oregon. And the Oregon law, on its face, one might think, is a reasonable framework to govern and regulate the practice of assisted suicide. If you look at the Oregon law, it authorizes physicians to prescribe lethal doses of drugs to terminally ill adult Oregon residents so they may self-administer them for the purpose of ending their lives. The law states that it does not authorize euthanasia. Just to be clear for your listeners, euthanasia, which is the directed killing of an individual by a third-party, sometimes a doctor, sometimes someone else, a kind of mercy killing. That’s unlawful in every state in the United States. There’s no state that authorizes euthanasia in the way that I just described: the direct, intentional killing of another individual. Assisted suicide is the facilitation of access to lethal drugs that a person self-administers for the sake of ending their own life.

 

So in the Oregon law, death by means of assisted suicide is not defined as suicide under the Oregon, and death certificates only list the underlying terminal illness as the cause of death, which, by the way, creates problems for record-keeping and data assessment in drawing conclusions about how well or poorly the regime is being administered because it’s very hard to gather information. It’s kind of a black box. Even those who are charged with administering the law in Oregon have admitted that they don’t have the resources or manpower or even regulatory tools to have robust comprehensive auditing of this system. So there’s a lot that we just don’t know about what goes on in Oregon, and it’s certainly not the case that Oregon has proven -- is proof of a principle that you can have a functional and good system of regulating assisted suicide. There’s just too much that we don’t know about it.

 

Now, terminal illness is defined as a malady that will produce death in six months or less, but the law doesn’t specify whether this prognosis distinguishes life expectancy with treatment or without treatment. Okay. That’s a very serious ambiguity in the law, by the way. A urinary tract infection could be a terminal illness if you don’t take antibiotics. But that’s -- but the law here doesn’t specify that. Competency under the law is defined as “the ability to make and communicate health care decisions.” Notice that that doesn’t talk about psychological illness in itself, doesn’t talk about depression that clouds one’s judgment. It simply talks about the ability to make and communicate health decisions. And it’s interpreted very, very narrowly.

 

To get a prescription, patients are required to make two oral requests of a physician. It doesn’t have to be the same person, separated by 15 days. Recently, the state enacted a waiver provision for cases where the doctor believes that the patient might die during the waiting period. The patient must also issue a written request signed by two witnesses, though there are no significant restrictions on who these witnesses are or might be. Two physicians, one prescribing and one consulting, have to confirm the diagnosis, the prognosis, and the capability of the patient to make the request, pursuant to that very narrow definition. There’s no mandatory psychiatric or psychological assessment.

 

The prescribing physician must advise the patient of alternatives, including comfort care, hospice care, and pain control. And there’s -- but there’s no requirement for the physician to have any expertise in those areas, okay, which matters a lot because pain management and hospice care are very sophisticated areas of medicine, and if you don’t know how to do those things, if you don’t -- lack familiarity, it’s very hard to convey to a person what the options are. And then, the physician may request, though it doesn't have to require, that the patient advise the family members or next of kin of their request for the prescription. Almost all the doctors doing the prescribing in this case are members or affiliates of the organization called Compassion & Choices, which used to be called the Hemlock Society, which is the most well-funded and successful advocacy organization for assisted suicide. There is a very limited number of doctors in the state who are willing to prescribe these lethal medications, so it’s a small number. Once the prescription is issued, there’s no requirement that any health care professional be present for the administration of the lethal dose. Physicians are immunized from liability if they’re found to have made a good faith effort to comply with the law, which is a very permissive standard in comparison to the usual standard for malpractice.

 

Since 1998, as of the publication of my book, so this is -- this number has increased since the year 2020, about 1,500 people have taken their own lives. The number ending their own lives has steadily increased, doubling from the four-year period of 2008 to 2012 from 2013 to 2017. The data is provided to the Oregon Health Authority by prescribing physicians. The state does not have funding or a mechanism to validate or audit those reports, and the original reports are destroyed once the state its aggregated annual data. So you can’t go back and do a longitudinal study or retrospective study. And then, one state official famously noted that the Oregon Health Division has no enforcement role and cannot verify the reports they receive from the physicians who participate in the regime established by the Death with Dignity Act. Okay. So that’s the descriptive account of the legal framework for assisted suicide in the state of Oregon. And that, largely, is reproduced in those states that have adopted it by statute as well.

 

So what I do next is I say, okay, let’s look at the anthropology underlying that legal framework. Let’s ask a question. If that’s what we take the law to be, what -- and what the aims of the law are and the protective safeguards within it, how should we think about what the law assumes about persons and flourishing, especially in the context of decisions made by people who are suffering from what are described as terminal illnesses in this situation. Okay. So the twin goods that the law means to advance here are autonomy, free choice in how and when you die, and compassion, right, the pathway for people to end their own lives to avoid what they consider to be a decline into intolerable suffering or intolerable dependency. Okay. And so, if you look at this framework, a lot of things jump out. Even on its face, it looks like, okay, there’s some safeguards in place, but then, you actually dig into the facts a little bit on how the law is applied; a very worrisome picture emerges, by my -- in my judgment.

 

So you have -- the law in Oregon, first of all, doesn’t take into account the strong empirical correlation between mental illness, including treatable depression and suicidal ideations. Okay. There is a very close association between suicidal ideation and treatable mental illnesses, including especially clinical depression. A super majority of persons with suicidal ideations suffer from mental illness, including a clear majority from treatable depression. A review of the medical literature shows that “the incidents of suicide in someone with a cancer diagnosis is approximately double the incident of suicide in the general population.” For cancer patients, depression was “the major risk factor for suicidality, and such patients were four times more likely to have a desire for hastened death compared to those patients without depression.” This is a study by the National Cancer Institute.

 

They also noted a strong correlation between cancer patients suffering from depression and the false sense that they were a burden to their loved ones. Another study on suicidal ideation in the elderly noted that a universal finding is a strong association with psychiatric illness, particularly depression. It concluded that the fact that there’s a high prevalence of potentially treatable psychiatric illness in the elderly people who both have physical illness and suicidal ideation should be central in any discussion of physician-assisted suicide.

 

Now, by contrast, you would think, okay, if that’s true, if that’s part of the anthropological picture of the person who has suicidal ideations, they’re vulnerable, uniquely vulnerable, because of mental illness that’s treatable that clouds their judgment, and their autonomy is diminished accordingly because they can’t make free and full and fair decisions about their own lives, you would think that the law would have strong safeguards in place to suss out those individual patients who have mental illness that’s treatable. But the law has no such mechanism at all. By operation of the definition of competence that I described to you, it doesn’t take into account -- there’s no mandatory psychiatric evaluation. Seventy-six percent -- by the way, the patients who died by assisted suicide in Oregon suffered from cancer. Okay. We just talked what the profile of the cancer patient is, and the median age of all the patients was 72, yet there’s no mandatory screening for psychiatric illness that might compromise their self-determination of those who request prescriptions to end their lives. And if you look at the Oregon death, particularly numbers, such as they are, and again, they’re very hard to get your hands on.

 

In 2018, the year that I evaluated for this book, which was published in 2020, less than two percent of the patients referred for psychiatric or psychological evaluation. Now, think about that for a minute. When the supermajority of patients suffering from suicidal ideation have treatable mental illness and only two percent of the people getting assisted suicide in Oregon are referred for psychiatric or psychological care, that raises very significant prima facie worries, I think. There’s no information, by the way, at all, on what happened to those patients after -- that very small percentage of patients, two percent, who received psychiatric -- there’s no record of what happened afterwards. Okay. We just simply don’t know. And again, when they surveyed Oregon doctors, only 28 percent of Oregon physicians surveyed said they felt comfortable to diagnose mental illness in a patient in the brief encounters that those Oregon -- these Death with Dignity doctors with these patients who are seeking assisted suicide. Okay.

 

And so, this -- so basically, the -- this worry about people suffering from treatable mental illness because of aspects of their embodiment, whether it’s biochemical or situational or what have you, this diminished -- this vulnerable state, which is completely ignored in constructing the model of the person on which this law is premised, on which this law operates. Similarly, so you’ve got obvious problems with concerns about people laboring under clouded judgment because of treatable mental illness making these existential choices, and then, on the other hand, you have situations involving the possibilities of fraud and abuse and duress. There’s what’s been an epidemic of elder abuse in the United States, and yet, there’s no requirement to evaluate -- to consult with the next of kin. And most shocking of all, if you take into account the psychological questions that I just flagged for you and the possibility of elder abuse, there’s no obligation that there be a psychological analysis of the patient at the time they take the lethal dose of drugs. Okay. The only time the assessment of competency — not mental illness but competency, defined in this narrow way — is when the prescription is sought. But there’s a pretty long period of time that elapses between obtaining the prescription and the taking of the lethal dose of medication.

 

And there’s no testing of the person at the time when they self-administer the drug, where you’d especially worry about competency, even basic competency on the narrowest definition of the law. There’s no question about can this person make decisions or understand. Have they changed their mind? None of those questions are asked at the time of the self -- in principle, self-administration of the lethal dose. In fact, the law doesn’t require anyone to be there when this happens. So you don’t know if there’s -- in a situation of elder abuse, due -- owing to the vulnerability because of the embodied state, the diminished embodied state of the patient, you don’t know what goes on in those settings. Okay. So the law is not constructed in a way to take seriously the vulnerability of the patient who is presented with this diminished state owing to their underlying illness.

 

Prof. William L. Saunders:  And it’s constructed to -- as if everyone is this thin slice of a human being, as you talked about, who are kind of fully autonomous and in control of everything and can make a decision.

 

Prof. O. Carter Snead:  Right.

 

Prof. William L. Saunders:  It just assumes that, and it doesn’t make it -- there’s nothing that takes account of the fact that there’s lots of people that don’t fit that.

 

Prof. O. Carter Snead:  Right. And so, you think about these extraordinarily vulnerable populations -- now, it’s possible -- I don’t mean to -- and Jerry Brown signed the law legalizing assisted suicide in California, he said — and it’s very telling what he said — he said, you know, I signed this law because I want to be able to make this choice, if I ever decide that it’s necessary in my life’s course to end my life on my terms. And I’m like, okay. Maybe there are people like Jerry Brown who are extraordinarily wealthy and powerful and privileged who can, with full presence of mind and autonomy of will, make a choice to take their own life. Okay. Maybe -- I admit the possibility that those people -- that that very -- there may be cases in which that’s true. But there are -- but that’s not -- you don’t make public policy with that person in mind when you make public policy for all 30 million people who live in the state of California with rampant poverty and elder abuse and racial discrimination and everything else. You make public policy with those in mind who are uniquely vulnerable, and so -- and to build a law that’s -- that assumes that the person you’re protecting is the governor of California as opposed to the weakness and most vulnerable is a deep -- I think it’s misguided, but I also think it reflects a deep anthropological confusion about what’s necessary to protect the flourishing -- to protect persons in their flourishing.

 

So what social science evidence has shown is that in those jurisdictions where there’s increased assisted suicide, the rate of hospice use, and the quality of hospice goes down, and that’s intuitively understandable, right, the path of least resistance. There are instances in which people are offered lethal drugs but not expensive care. There are instances in which people report being pressured by their children or their -- the people who are tasked with taking care of them to end their lives because they seemed to be burdens -- because they consider themselves to be burdens, or even in the absence of real coercion, a kind of misunderstanding of one’s role as a burden to one’s loved ones. Right?

 

And so, interestingly, in the early 1990s, Mario Cuomo appointed a taskforce to look at the question of assisted suicide and whether it should be legalized in the state of New York. And in that taskforce, called the New York Taskforce on Life and Law -- was not composed of conservatives, I tell you. They weren’t people who were -- they were very -- it was a very progressive and liberal body that had, in principle, a kind of commitment to freedom, autonomy, self-determination, which, of course, are all goods and important goods. And they thought that that was going to be decisive in their recommendation. Ultimately, they concluded that under no circumstances should assisted suicide be legalized in the state of New York because of the uniquely vulnerable people who would be endangered if that were put on the table. And you see all over in Canada where people are getting assisted suicide because they can’t find housing or being encouraged to have assisted suicide because they have autism or because they’re tired of living or because they weren’t given a ramp to get their wheelchair up in a particular apartment building, you can see how far ahead Canada and the Netherlands and Belgium are in front of us in terms of the risks to these vulnerable populations.

 

But let me just briefly read — and I’ll stop; I’ve been long-winded here — the one passage from the New York Taskforce on Life and Law that I think is so important and illustrates the question of -- the anthropological question -- because if you look at the Oregon law, what the Oregon law clearly is designed to do is to protect and promote the flourishing of the privileged, of the wealthy, of those who are operating at the height of their cognitive powers, who are not encumbered by physical -- by confounding factors like mental illness or other experiential factors that diminish their autonomy, right, because it fails to take the body seriously because it fails to take into account all the confounding elements that embodiment can bring with it in its vulnerability and its weakness. So here’s what the New York Taskforce said. They said, “We believe that the practices of assisted suicide and euthanasia would be profoundly dangerous for large segments of the population, especially in light of the widespread failure of American medicine to treat pain adequately or to diagnose and treat depression in many cases.” This is what we’ve already talked about, you and I.

 

“The risk would extend to all individuals who are ill. They would be most severe for those whose autonomy and well-being are already compromised by poverty, lack of access to good medical care, and membership in a stigmatized social group. The risks of legalizing assisted suicide and euthanasia for these individuals in a health care system in society that cannot effectively protect against the impact of inadequate resources and engrained social disadvantage are likely to be extraordinary.” So again, if you want to build a law that protects persons in virtue of what and who they are, you need to take into account the distinctive vulnerabilities that we’ve been discussing, and the Oregon law, and every single law that’s been modeled on it, systematically fails to do that.

 

Prof. William L. Saunders:  Well, Carter, let’s take a minute just to see what questions we might have. And we can come back and explore what we’re talking about in more depth, but just to give our listeners an opportunity to ask a question. They wanted your opinion on the use of puberty blockers for adolescent minors. It says, “I believe this issue not only pertains to people of individual -- a principle of individual autonomy but also intersects with broader societal justice concerns, particularly in relation to the rights and well-being of minorities. In your view, how should public policies approach and address this complex and conflicting issue of puberty blockers for adolescent minors?”

 

Prof. O. Carter Snead:  Yeah. So I honestly -- I don’t -- I’ve not studied the question of puberty blockers: how they work, how irreversible they are, the complications that follow from that. There’s a lot of empirical assertions, and I’m only a very casual observer of this debate, this particular debate. There are people who know an awful lot more about it than I do. But I can speak to it as a parent and as a person who is mindful of the role of embodiment and constructing law and public policies --

 

Prof. William L. Saunders:  Yeah, yeah.

 

Prof. O. Carter Snead:  -- and so, I will -- I would preface my remark by saying this is something I don’t know very much about and -- as a scientific matter, as a cultural matter, but I do -- but my -- what I would say — and I’ll keep it in line with the arguments of the book and my own views — if there are states -- there’s a pitch disagreement, right, in the public square about what the proper policy should be for children, and we’re limiting -- I’m limiting my comment to children, not adults, but children who experience gender dysphoria or identify themselves as a different sex than their biological endowments would reflect. And my view is, beginning with the paradigm that I’m trying to argue, which is to say, human beings, by virtue of their embodiment, are uniquely vulnerable. They are uniquely dependent upon one another, and they’re subject to natural limits and by -- and as a result, are -- flourish when they are in networks of individuals that care for one another. Okay. I worry an awful lot when we talk about doing things with children because there’s -- that’s a population whose autonomy is already dramatically diminished by virtue of being children. Right? And it seems to me, if we’re arguing about who should make decisions for children and the child’s well-being, I think we should have a strong default rule of parents making decisions for their children. And I certainly wouldn’t agree with the idea that school systems should override or conceal things from parents, and as a parent, that’s something that I feel very strongly about.

 

But whatever law we settle on here or public policy involving these kinds of interventions for children, we have to put in front of our eyes not an idealized and false vision of autonomy or project a false vision of autonomy onto a child and imagine a child is just a small adult who has preferences and views, and in so far as these -- so that is to say a mistake we can make in thinking about how best to care for children in this situation mirrors the mistake of how we think to best care for people in the end-of-life context where we project onto a person who’s suffering and vulnerable and really needs help in making a decision, not simply being said, “I’m going to give you freedom of the unencumbered will, and I’m going to abandon you to your freedom.” That’s what we -- that’s what I was just talking about in the end-of-life context, and that’s, I think, goes very badly to abandon someone to their freedom in that setting. And it’s even more problematic when you’re talking about a child who is not an adult, who is not deemed by the law, appropriately, to make very serious decisions about their care and well-being. And so, what we have to do is to act in the best interest of the child in light of who and what the child is as an embodied being embedded in community.

 

Prof. William L. Saunders:  Another question says, “Is the concept of self-ownership as bad or is it amenable both to human suffering -- human flourishing as the concept of ownership of others?” Is self-ownership as bad for human flourishing as the concept of owning others, the idea that you own your --

 

[CROSSTALK]

 

Prof. O. Carter Snead:  Yeah. I’m not -- so I think it’s a tricky business comparing what anthropological presumptions are worse than others. I would say that -- I would say I’m more afraid of people assuming ownership of other people than they are ownership of themselves, even though I’m a very strong critic of the notion of self-ownership as the sole and comprehensive explanation of what human flourishing is. Right? I do think that self-ownership is true and important in a limited sense, taking into account our vulnerability and mutual dependence upon one another and the role we play in our interrelated constitutive relationships. And it is dangerous and problematic if you have a view of yourself that is -- doesn’t fully take onboard your unique vulnerability and reciprocal indebtedness to other people. But history shows it is really dangerous and really problematic once you start to think that you are in control of other people and you own other people. That, to me, is an inarguable wrong and harm that slavery and other horrific, shameful examples in human history reflect.

 

Prof. William L. Saunders:  Yeah. And a lot of these scandals in bioethics you were talking about, particularly since they came after the second World War, reflect the idea that some lives aren’t worth living or aren’t equal enough or not worthy of protection or inferior and don’t deserve respect, which is, I think, another kind of angle to that idea of owning others. You don’t own human -- you own cattle, or you own property, so you see other human beings as being more like that than like yourself.

 

Prof. O. Carter Snead:  Yeah. It’s a category mistake, right, to use the concept of ownership vis-à-vis other human beings is a kind of unintelligible proposition. Right?

 

Prof. William L. Saunders:  Yeah.

 

Prof. O. Carter Snead:  Ownership is not how people relate to each other. And if someone purports to own another person, that’s a deep violation of that -- of respect for the intrinsic equal dignity of all human beings.  And it is individual. Right? So we want to -- in the United States, it seems to me, that the risk of -- the principal risk of our anthropological reflections are not falling into collectivism. Right? There are cultures in which collectivism is the risk, and the lack of individual rights and dignity and freedom is the antidote to that. Right?

 

When I was at UNESCO, negotiating the Universal Declaration of Bioethics and Human Rights in the early 2000s, there were other member states and representatives of member states who said, “Our problem is not” -- in fact, it came up in the context of debating and discussing what human dignity means. One of the representatives of these -- and it might have been North Korea, stood up and said, “You know what? This concept of human dignity seems way too individualistic. I don’t -- we don’t -- that’s not really something that we -- that’s not a concept that makes sense within our cultural milieu. We think of the collective. We think of the whole as the most important unit, and individuals are merely instrumental to the well-functioning of the whole.”

 

That’s another kind of mistake that one — in my view, respectively — would -- can make. But the mistake that we make in our law, touching and concerning these areas that I take up in the book, is not the problem of collectivism or owning other people. The problem is a kind of outsized, unrealistic sense of human -- of radical individuation and expressivism.

 

Prof. William L. Saunders:  So Carter, just going back to what you and I were talking about just a minute ago. How would this remembering of our embodiment -- how would that affect -- just say more general words about death and dying.

 

Prof. O. Carter Snead:  Yeah, absolutely.

 

Prof. William L. Saunders:  Yeah.

 

Prof. O. Carter Snead:  And the thing is that people -- a common question is, well, okay. I agree. I agree that human beings flourish in community, that man is a social animal, and we can’t abstract from that the individual -- individuated sort of -- pre-political individuated self is not actually a thing. That’s a kind of construct. So what do we do? You tell us what’s wrong with assisted suicide. What do we -- how do we fix it?

 

And the good news is — in most instances, and it's also true now; it wasn’t true until Dobbs, even in the context of abortion — we actually have the freedom to govern ourselves on these questions and have robust argument back and forth and discussions and conversation about what is human flourishing and construct our laws in ways that reflect. And the measurement of the success or failure of the law is how well does it protect these vulnerable populations that are neglected otherwise. So you can -- first of all, it gives you an angle of critique to say the law of Oregon’s assisted suicide and every law that is modeled on it is woefully inadequate and problematic because of the reasons that you and I just talked about. So what do you do?

 

Well, let’s start with first principles. What do people need who find themselves in circumstances where they find themselves wanting to end their lives in this way? Well, how do you properly care for someone -- how do you properly care for a society in which that issue comes up, taking into account the position of the weakest and most vulnerable? And so, you begin with the proposition of, okay, well, let’s think about what medicine is. Let’s think about the end of medicine as health, and that’s a contested concept, obviously, as illustrated by the previous question about puberty blockers. There’s deep disagreement of what constitutes flourishing and health in the medical context.

 

But we need to have that conversation. We need to say let’s speak in those terms and not simply make unstated assumptions that what we’re here to do is maximize autonomy because what people need is to maximize their autonomy. Well, yes, we do need that. That’s important. But when you are suffering in a diminished state, sometimes what you need is not to have your autonomy maximized. You need to be taken care of.

 

People don’t go to the doctor to maximize their autonomy. You talk to doctors and patients -- and even Carl Schneider, the late great Carl Schneider, did social studies -- social science studies on this question. People go to the doctor because they’re vulnerable. They don’t know how to care for themselves, and they want someone to take care of them. And this plays out in the end-of-life decision context as well. Simply facilitating someone’s choice to discontinue life-sustaining measures is not the full spectrum of things we need to do to care for people who are dependent upon life-sustaining measures.

 

You have to take into account the fullness of what a particular individual needs and construct the law accordingly. And what that might look like in the assisted suicide context is to take assisted suicide off the table because it’s a path of least resistance that has intractable risks of fraud, abuse, duress, mistake, and exploitation, and then, you increase hospice, pain management, and facilitate a more human context and get to the root of those questions. Why do these folks want to end their lives? If you do social science ethics studies on the people who seek assisted suicide, it’s not because of their intractable suffering. That’s a very small percentage, actually, of why people seek to end their lives in that setting. It’s because they worry about the loss of autonomy and being a burden to their families.

 

So how can we configure a social framework in which those concerns are addressed without the solution being self-annihilation. Right? So I think that’s the kind of discourse that this anthropological inquiry can lead to. I don’t have pat solutions to these problems. But I think it gives us an angle of critique to see the weaknesses in the current arrangement and gives us a kind of set of concepts to discuss and debate amongst themselves in the democratic process and figure out how to govern ourselves on these hard questions.

 

Prof. William L. Saunders:  Yeah. For instance, we could take into account the idea that maybe the law should find ways in which it makes it -- helps to hold up extended families and things like because people who love you and want to take care of you need to at least not be inhibited by the law. So in other words, we could structure policies so that kind of thing happens because one of the things that leads to despair is also being on your own and isolated and -- if -- at least we could talk about whether that’s something the law should address in some way.

 

Prof. O. Carter Snead:  Yeah. What we see in some countries, and I’m not an expert in this. They talk about in Japan. There are these deaths of despair of these elderly people who die themselves, and there are entire units whose job it is to go in and find people who have died by themselves and get and remove them from their apartments. That to me is a kind of a -- it’s a tragic reflection of a -- just a failure of a society to take care of itself, for people to take care of one another.

 

And there’s a lot of reasons for that. That’s not -- I’m not indicting Japanese culture, by any means. Please don’t hear me to say that. I’m just saying any situation in which that’s the output, lonely people dying alone. That’s needs -- that’s a problem that -- that’s a pathology that needs to be addressed.

 

Prof. William L. Saunders:  Carter, we’re going to run out of time pretty soon. I want to give you a chance, though, to -- I don’t know, to say anything that you would like to, either about the subject or about the book or what you hope a listener could -- like I have said, I do think they should get the book and read it because it’s a wonderful book. But what would you like the listener to take away from today?

 

Prof. O. Carter Snead:  Yeah. So one thing I try to make clear at the beginning of the book is that this book is not -- there are philosophical ideas in the book. There’s literature discussed. But it’s ultimately a book about the law, and it’s about the premises of the law, not the premises of individual people. So it’s not meant to be a critique of people that I might disagree with on certain kind of public policy questions. It’s meant to be a disagreement with the embedded assumptions of the law reflected in the law’s doctrine and mechanisms about personal identity and flourishing. And I fully understand that we live in a pluralistic society where people have very strong disagreements about fundamental questions.

 

And I wanted to make clear in the book that this book is effectively meant as a kind of -- it’s not meant as a sort of philosophical proof that commands the assessment -- or commands the ascent of the reader. It’s meant really as a kind of proposal to read and to think about and to consider in light of a person’s own self-understanding, of their own life history, their own wants and needs and fears and hopes. And so, the idea behind the book is to -- is it’s sort of -- it’s really meant as a kind of invitation in the spirit of authentic friendship, so even if people might look at my work or me and say, “Wow. That’s somebody that I just really have strong disagreements with on these basic questions.” That’s fine. I perfectly understand that, and I think friendship across ideological difference is really important.

 

And so, the spirit of this book is a kind of invitation to consider a perspective and to weigh it against your own self-understanding and experience and see if it resonates because that, to me, is the standard of proof in the public square. Right? We don’t live in a university. We live in a community where people have strong disagreements, and they’re going to make judgments based on their own practical wisdom and their practical understanding.

 

And that’s what I hope people will do. They’ll take the book. They’ll read it. It’s not just for people who share my underlying point of view about these contested questions. It’s really, hopefully, something everyone can get something out of.

 

Prof. William L. Saunders:  Well, I encourage everyone to do it. Thank you for being with us, Carter. Congratulations on the new chair there at Notre Dame Law School.

 

Prof. O. Carter Snead:  Thank you.

 

Prof. William L. Saunders:  So I hope the listener will let others know about this. FedSoc will put this up, and this discussion will be available after today. I turn it back over Chayila.

 

Chayila Kleist:  Well, thank you both. Really appreciate you taking a section of your afternoons and lending us your valuable time and expertise. And thank you also to our audience for joining and participating. We welcome listener feedback by email at [email protected]. And as always, keep an eye on our website, your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We’re adjourned.

 

 

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