WeeklyTech #103

A conversation with Dr. Carter Snead on public bioethics and the nature of humanity

This is a transcription of the WeeklyTech Podcast interview with Dr. Carter Snead. Subscribe in your favorite podcast app to get new episodes each Monday morning or listen online.

Jason: In this episode, I’m joined by Dr. Carter Snead, who serves as a professor of law and the director of the de Nicola Center for Ethics and Culture at the University of Notre Dame. Today, we talk about his latest book, What It Means to Be Human: The Case for the Body in Public Bioethics. Dr. Snead is one of the world’s leading experts on public bioethics. His research explores issues relating to neuroethics enhancement, human embryo research, assisted reproduction, abortion, and end of life decision making. He has written more than 50 journal articles, book chapters and essays. His scholarly work has appeared in such publications as the New York University Law Review, the Harvard Law Review Forum, and the Vanderbilt Law Review. Now, let’s join our conversation with Dr. Snead. 

Dr. Snead, thank you so much for joining us here on WeeklyTech. As we get started, can you tell us a little bit about your background and your interest in bioethics?

Dr. Snead: I’m a professor of law at the University of Notre Dame, where I also direct the de Nicola Center for Ethics and Culture, which has a significant bioethics component to its academic programming. Before joining the faculty at the University of Notre Dame in 2005, I served as general counsel to President Bush’s Council on Bioethics from 2002 to 2005. It was an amazing experience working under Leon Kass, who was the chairman at the time. We had a very interesting and diverse group of council members, including Gil Meilaender, Robert George, Mary Glendon, Frank Fukuyama, James Wilson and Michael Sandel. A whole array of very interesting and thoughtful people. So that was a special experience. Before that I was a lawyer practicing at a law firm. Before that, I clerked for a federal judge, and did some studies of bioethics and law when I was at law school at Georgetown. And before that, I graduated from St. John’s College in Annapolis, Maryland, which is a great books program. It also has a pretty robust laboratory curriculum: a three-year required laboratory curriculum in which you go through the original sources for the various sciences in Western civilization, including biology. So I spent a lot of time with Aristotle as parts of animals, then all the way up through modern genetics. So I was always interested in bioethics. But, I got the in-depth exposure working as general counsel of President Bush’s Council on Bioethics.

Jason: I really appreciated your book, What It Means to Be Human by Harvard University Press. In the book, you argue that our current laws around bioethics are often grounded in an incomplete or a false vision of human identity and flourishing, namely what you call an expressive individualism. What are the problems with this expressive individualism and what’s this alternative vision that you propose?

Dr. Snead: I would start with the observation that all law and public policy, because this is a book about law and public policy, analyze the current state of play, of the law of abortion and assisted reproduction and end of life decision making. All law rests on a prior assumption about what a human being is and what constitutes human flourishing. That’s because all law and public policy aims to promote the flourishing of persons and to protect persons. So it has to, if it’s going to be coherent at all, operate from a usually unstated set of assumptions about who we are and what we owe to each other and what constitutes our flourishing. So, when I took a look at those areas of law and policy, what I found was that the assumptions about human identity and human flourishing were imperfect and flawed in a dangerous way. Namely, as you said, it operated from the anthropology. I don’t mean this in the academic sense. I mean it in the sense of what it means to be a human being. It’s assumptions about what it meant to be human, being tracked very closely with what philosophers have described as expressive individualism, as well as social scientists (by the way, Robert Bella, author of the 1985 classic Habits of the Heart, I think coined the phrase expressive individualism). This is a vision of the human person that really identifies and defines the person solely in accordance with and with respect to his or her will, his or her set of desires. A person is defined by their capacity to choose, and the human person is defined and their flourishing is defined by interrogating the depths of the interior of their selves to find their own authentic and original truths, express those truths, and use those truths to configure their life plans.

Moreover, the fundamental unit of human reality in this anthropology is the individual. So, people are defined by their individual particular wills, their atomized individual wills, irrespective of how they find themselves situated in relationship to their family or their community, their tradition or their civilization. All of that is accidental. All of that is instrumental to them pursuing the goods that they dislike within themselves, by interrogating the interior depths of their own desires, that means we are free individuals, we are individuated, and we’re particular. There is some truth in it. It is a compelling and attractive vision, a sort of romantic vision of the lonely individual blazing his or her path in the universe based on his or her authentic truths, regardless of the community or anyone around them. In fact, usually in some cases, it is transgressive of the norms and the mores of the community around them. So, it’s kind of a tract. It’s a sort of sexy vision of the individual pursuing his or her own way. But, it is for anybody who thinks for a moment about what our lives are like individually and in our shared lives with others. It doesn’t even come close to describing how we are for much of our lives. We are vulnerable and dependent upon others. Obviously, we’re born. We come into the world. We’re radically dependent upon the beneficence of our parents to care for us and others to care for us. We wouldn’t survive otherwise. There are moments in our life where we become sick or injured or damaged in some way, and we again come to rely on others.

Alistair Macintyre, famous philosopher, says that “we all exist on a scale of disability,” and I argue in the book that the reason for our vulnerability, the reason for our mutual dependence and our being subjected to natural limits, is because we are in a fundamental way, bodies, living bodies. We are in the world. We experience ourselves as bodies. We experience one another as bodies. We live as bodies. We die as bodies. And what the anthropology of expressive individualism misses is this element of our identity, which is embodiment. That’s especially dangerous when you’re building laws and policies for bioethics, because law and bioethics and the issues that the laws and policies respond to frequently are the vulnerability and neediness of people precisely in their embodied state. If the whole universe of persons is limited to people who are capable of interrogating their interior selves and expressing their original truths, you’re leaving a whole lot of people outside the circle of the human community: children, the elderly, the disabled, and obviously unborn children. It’s a very narrow and inhuman account of who we are and what we owe to each other. That is expressive individualism. So, my argument in the book is that we make a terrible mistake when we build our laws on those anthropological assumptions.

Jason: To dig a little bit deeper on that, how do you see this culture of expressive individualism playing out in debates around issues like abortion or end of life decision making?

Dr. Snead: Yeah, so to be clear, when I talk about these assumptions about who we are and what our flourishing is, I’m talking about the assumptions on which the law is built, not the assumptions that individual people make in making their own decisions. So, there’s a mismatch between this vision of the person having merely an atomized individual will in expressive individualism. The complex, lived reality is that we are, in fact, a dynamic unity of mind and body and our bodies are an essential part of our identity, not merely instruments to bend to our wills, and to pursue our plans. You see this mismatch between the assumptions about what a person is and the reality of what a person is in the context of the law of abortion. For example, read the seminal cases in American law: Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey, and so on. What I show is the court in making the law of abortion in the United States, because in the US, abortion law is primarily a function of Supreme Court jurisprudence, because the court took to itself, I would argue, arrogated wrongly to itself the authority to make all law on abortion in the United States by interpreting the Constitution in a way that, again, I think bends its meaning in an unrecognizable way to take a passage from the 14th Amendment that says no person shall be deprived of life, liberty or property without due process, of law that was ratified in 1868. Read into that an almost absolute right to abortion throughout nine months of pregnancy, which is what the court did in 1973 in Roe v. Wade.

If you look at the court’s reasoning, as I did, and if you look at the philosophical literature on which the court at least implicitly relies on the philosophical underpinnings of the abortion rights movement, what you find is even the framing of the question or the backdrop, the factual context in which the abortion question arises, the framing is unrecognizable as human because they describe the relationship between a mother and unborn child as a relationship of atomized strangers who are in a conflict over scarce resources, namely the body of the mother herself. The mother is recognized as a person because she can do the things that persons do under the auspices of expressive individualism. She’s self-conscious. She has the cognitive capacities for introspection and to find her original truths and to configure her life plans accordingly. Whereas the unborn child is not recognized as a person because he or she is due to his or her own immaturity, not capable of that kind of cognitive activity. So you have a clash of strangers, one of whom is a person because of her cognitive powers, one of whom is not a person because of his or her lack of cognitive powers. The reasoning sort of falls out from there and the burdens that the court look to derive the right to abortion are the burdens that would be the burdens recognizable by expressive individualism. That is the burdens on a woman to pursue her life plan in full freedom, to find her place in the economic and social life of the nation on the same footing as a man while pursuing forms of sexual expression that men do as well. 

For example, a man and a woman engage in sexual intercourse and the woman becomes pregnant. She is differently burdened by that action than the man is. The right to abortion is necessary to eliminate that burden so that she can pursue her hopes and dreams, in the economic and social realm, and viewed through the lens of expressive individualism. That’s how you frame the question. But as we know, a richer and truer account of what is involved in the context of abortion is a conflict between a mother and her child. It’s not two strangers. It’s two human beings that have a very specific kind of relationship with one another. It’s encoded in their bodies. That is, the child is in the mother’s body. The mother’s life is intertwined inextricably with the child and the child is dependent on the mother in a way that no two people are intertwined and dependent on one another. If we start there, in a way that takes the body seriously, our reasoning looks a lot different than it does if we’re talking about two strangers fighting over a lifeboat or something like that, which is the analogies of the abortion rights literature.

The most famous analogy is, of course, from Judith Jarvis Thompson’s essay, “A Defense of Abortion.” She describes the circumstances of an unwanted pregnancy with the metaphor of a woman who is abducted, anesthetized and has a violinist attached to her circulatory system. And he has to stay attached to her surgically for nine months or he’ll die. That’s how the abortion rights movement, at least through Judith Jarvis Thompson’s eyes, sees sees the problem and the question of abortion, and how to resolve it. Once you frame it that way, it becomes clear that it’s a zero sum conflict between strangers. We talk about it almost the way we talk about property. And that’s not, as I would submit, a human way to describe the conflict and if we’re misdescribing the conflict, we’re not likely to get a just or humane answer.

Jason: How does that same type of thinking then play out in terms of end of life issues? I think you rightly pointed out, especially with abortion, is this dehumanization of the child in the womb and those conflicting rights and how they work out. But, how does that play out in issues like euthanasia or the cure for the elderly?

Dr. Snead: The problem, again, is a mismatch between the assumptions of the law about what a person is or in particular who this patient is and the reality of who he or she is and what his or her needs are. So, you begin with the presupposition. Let’s start with the example of a person who has lost their cognitive capacity to make medical decisions on his or her own behalf and is dependent upon life sustaining measures. That’s the clinical human reality. The law comes to that situation with the assumption that the person in the patient’s bed is defined by his or her will whose highest flourishing is the interrogation of the self to find his or her original truths, to project them, and to formulate and configure life plans accordingly. Well, anybody who’s ever been sick knows that that’s not what’s going on in the doctor-patient relationship. If you try to build a legal apparatus to protect that person and promote their flourishing, what you’re going to end up with are legal mechanisms for decision making that are completely unsuited to the situation. If my goal is to maximize the autonomy of the patient, who’s cognitively incapable of making decisions for himself, I can’t fully address the clinical situation in a humane and appropriate way. What a person in a sick bed needs are people to care for him or her. You don’t go to the doctor to seek to impose your unencumbered self in the person who is unconscious or is cognitively disabled and dependent on life sustaining measures. His or her best interests are served by trying to maximize their autonomy.

Right now, what the law tries to push us towards is to memorialize our preferences at a time when we can’t really understand what our lives are like in those circumstances and let that be the sole guide to our decision making. Now, that’s important. It’s important to think through what we want and what our treatment pathway should be. But it’s also important, as we said in our President’s Council on Bioethics report called “Taking Care: Ethical Caregiving in an Aging Society,” we say that what you really need is a person who is acting in your best interests, taking into account what you want and what you need and what you’ve said in the past. But, treating the patient as he or she is, not as we would wish him or her to be. In the context of assisted suicide, it’s even more dramatic. If our goal is to maximize the autonomy and the assertion of the unencumbered will of the atomized individual, then we’re going to promote assisted suicide. But, if you take seriously the context of assisted suicide in which persons who have suicidal ideation, a vast majority of them are suffering from depression that’s treatable. Frequently, the ideation goes away once the depression is treated. The disabled community, for example, is extremely hostile to legalizing assisted suicide because they understand that the circumstances are going to push them in the direction of taking their own lives).

We’ve seen this play out time and time again for the poor, the disabled, the elderly, members of discreet, insular minorities. These are at risk communities who are already suffering from the structural injustices of our health care system. Once you open the possibility of them taking their own lives, that becomes a path of least resistance. And, all the incentive to care for them in the fullness of all their needs is going to be harder to do. We’re going to be pushed in the direction of, “well, my job as physician or as a family member or as a legislator is to create structures where this person can maximize their autonomous decision making to write the last chapter of their own personal narrative.” Yes, that’s not, again, a fair clinical account of most circumstances when people have suicidal ideation. Now, there may be narrow circumstances where wealthy people, people of means, usually white people, decide that they want to go out on their own terms and they want someone to prescribe them lethal medication they can self administer. There may very well be people of sound mind who want to pursue that pathway, but you don’t make public policy with that narrow band of privileged people in mind. You make public policy with the weakest and most vulnerable in mind, and therefore you have to build it on anthropology that takes seriously the weakness and dependence and the subjection to natural limits that emerge from our own body.

Jason: Shifting from a law perspective over to understandings of natural law and ethics and philosophy, what role do you see a theistic natural law playing in a lot of these debates over public bioethics and public policy?

Dr. Snead: I think that people of faith should not be shy about explaining their positions and the terms in which they believe that make sense to them and are persuasive to their fellow citizens. There’s certainly nothing wrong with relying upon intelligible, articulable faith based principles in service of public policy. People do it all the time. Our homicide laws are not illegitimate because the Fifth Commandment says thou shalt not kill. Once you want to start asking the question of why shouldn’t we kill innocent people, you pretty quickly get into a theological posture, right? There’s not really a reductive, secular account that’s not purely utilitarian of the root injunctions to love our neighbor and to love our neighbor as we do ourselves. Poverty laws and policies, immigration policies, bioethics, they’re all the same. Every law is grounded in it, in a normative structure. Every law aims at promoting a particular good or avoiding a particular harm and there’s nothing wrong. There’s nothing shameful or inappropriate about individuals who in the public square make the case for certain policies and certain laws in a theological way. Now they’re strategically there might be a good reason to frame one’s arguments in a way that would be intelligible to people who don’t share one’s faith tradition. But, to take the example of abortion, which is grounded basically in the ethical norm that one should not kill innocent human beings. One should not use it without justification. One should not kill innocent human beings. This is a principle that’s encoded in our law and it’s encoded in the Judeo-Christian tradition and the Islamic tradition.

These are very old principles that have theological roots and I don’t think we should be shy about that. Now, bearing in mind that there are people who are maybe suspicious of persons of faith like you and me and when we go into the public square and we try to make our case, a pro-life case for the unborn child and her mother, by the way, not just the unborn child, but unborn child’s mother and their family and the community and caring for the poor and the vulnerable and trying to be the Good Samaritan, we can make that argument in a way that is grounded in our faith tradition. But, we can do so in a way that’s intelligible to those who don’t share our faith. But I think we should not be cowed and it’s a very lazy and cynical move that some in the public square make when they say, “well, don’t impose your religion on me.” 

For example, someone says, “I heard today that President Biden is going to halt all federal executions when he takes office,” and I said jokingly, “I’m glad he’s going to impose his religion on all of us and I am glad that he’s going to halt all the federal executions.” But any decision the person makes, it’s normative and all law is normative, is grounded in some normative framework, whether it’s religious or secular.

Jason: One thing that I was really impressed with while reading through your book is the welcoming and inviting tone. Often when you read cases, especially in ethics, they can get very confrontational, often misreading or overreading someone else’s position. Why was it important for you to maintain that welcoming, inviting tone throughout all your writings, but specifically in this book?

Dr. Snead: Thank you for saying that. It is important to me to make the argument of those who I don’t agree with in a way that they will recognize and affirm as capturing what they’re arguing. It’s about the virtue of honesty. But the fundamental point of the book that I’m making is that as embodied beings, what we need to flourish are what Alistair Macintyre calls “networks of uncalculated giving and graceful receiving.” We need to have networks of people who are willing and able to make the good of another person their own good without seeking some advantage, without seeking something in return, not because it’s a contract or a transaction, but because that’s what it means to be a human being. Of course, we rely on these networks for our survival when we’re disabled or young or elderly. But, we also learn what we’re supposed to be from these networks, which is people who take care of one another. So ultimately, human beings are, by virtue of their embodiment, made for love and friendship and I think arguments are really important and I think intellectual scaffolding is really important. But ultimately, we want to change hearts and minds, which I think is sorely missing from our public square at the moment. We saw some horrible things yesterday at the US Capitol and we’ve seen horrible things at other times as well in the recent past. People are not listening to each other and they’re not treating one another as their neighbor. We’re called upon to love our neighbors as we love ourselves. We’re called upon to be the Good Samaritan and it is through friendship and through uncalculated giving and gracefully receiving that we will change hearts and minds. We need arguments. We need to lay things out there and explain why we hold the views that we do. But, a person is not going to listen to you unless they believe that you care about them and we have to, as hard as it might be, love our neighbor, and love our enemy in a way that gives them the respect of being honest about what they’re arguing, but also extends a hand of friendship to those without expecting anything in return. 

Jason: That’s a really important point to end on, especially as we do wrap up this conversation. As we close out our time today, if someone wanted to take a next step toward learning about bioethics and getting into some of these public theology and public policy issues, what are one or two books outside of your own that you would recommend for folks to grab and to dive into?

Dr. Snead: Yeah, I strongly recommend that people pick up a book by Gil Meilaender. Gilbert Meilaender is a Lutheran theologian who is on the president’s Council of Bioethics, who is one of the smartest and most interesting people I’ve ever met. He’s certainly one of the most interesting, if not the most interesting person who writes about bioethics. He has a book called Body, Soul, and Bioethics, which is a great book. It’s short, it’s digestible. It explains all the issues in a very interesting way. It gives a great critique of modern bioethics. It talks about assisted reproduction. It talks about abortion. It talks about cloning. And it’s a wonderful, wonderful book. I would also recommend folks look on the old website housed on Georgetown’s website. If you google “President’s Council on Bioethics” you’ll find a link that Georgetown hosts and you can look at all the reports that we wrote at the President’s Council on Bioethics. We have a report on human cloning. We have a report on embryo research. We have a report on enhancement. We have a report on end of life decision making with a report on assisted reproduction. There’s a literary volume that we put together that has excerpts of the great works of Western civilization that echo bioethical themes. It’s a great, great resource. I would start with my Landers book, Body, Soul and Bioethics, and I would go to the website and you can download all of our reports for free.

Jason: I want to thank you so much for joining us and taking the time out of your busy schedule to join us here on Weekly Tech. I’m really grateful for your work. I’m really grateful for this book specifically and the way that you speak to these important issues in bioethics.

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