Sean Carroll's Mindscape: Science, Society, Philosophy, Culture, Arts, and Ideas - 14 | Alta Charo on Bioethics and the Law

Episode Date: September 8, 2018

To paraphrase Ian Malcolm in Jurassic Park, scientists tend to focus on whether they can do something, not whether they should. Questions of what we should do tend to wander away from the pristine beauty of science into the messy worlds of ethics and the law. But with the ongoing revolutions in biology, we can't avoid facing up to some difficult should-questions. Alta Charo is a world expert in a gamut of these issues, working as a law professor and government official specializing in bioethics. We hit all the big questions: designer babies, birth control, abortion, religious exemptions, stem cells, end of life care, and more. This episode will give you the context necessary to think about a host of looming questions from a legal as well as a moral perspective. Alta Charo is currently the Warren P. Knowles Professor of Law and Bioethics at the University of Wisconsin–Madison. She earned a B.A. in Biology from Harvard, and went on to receive her J.D. from Columbia University. Charo served as a bioethics advisor on the Obama Administration transition team, as well as working as a senior policy advisor at the Food and Drug Administration. She has been a Fulbright Scholar, is a member of the National Academy of Medicine, and was awarded the Chancellor's Distinguished Teaching Award at UW-Madison.

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They're not separate. Sometimes we are forced or nudged toward asking ethical questions about scientific and technological advances. We've learned something about the universe. We've developed the ability to do something with our scientific knowledge. But should we do that thing? Should it be legal to do that thing? And these are not just dorm room philosophy questions either. The government often has to make decisions about what should and should not be legal

when science introduces new possibilities into our lives. So today we welcome an honest-to-goodness law professor onto the podcast for the first time, and we'll be talking about a wide range of questions dealing with these bioethical and legal issues. Alta Shero is a professor of law and bioethics at the University of Wisconsin-Madison, and she's been active on both the scholarship and policy sides of the equation. She served as a bioethics advisor on the Obama administration transition team when Obama became president, and she's also worked as a senior policy advisor at the Food and Drug Administration. When she's not in that kind of policy role, she's a professor writing,

articles in various journals, and she's written extensively on things like stem cell research, gene editing, abortion, religious exemptions to providing medical care. Should you be able to, you know, not provide a certain medical service if your religious belief says it's not right? Cloning, organ donation, and many, many more. She's an extremely broad thinker in these issues, and we're going to talk about them. We're going to go through a whole list of interesting issues at the intersection of biology, ethics, and the government, the legal side of things. And we're going to also discuss what kind of comprehensive philosophical framework might allow us to address these questions in a systematic way. So let's go. Altoshaero, welcome to the Mindscape

podcast. Pleased to be here. Now, your official self-designation is as a bioethicist. Is that accurate? Yes and no. I am a professor of law, and I work in the field of bioethics. I'm not sure anybody knows how to define a bioethicist. That was one of good, many questions that I was going to ask. So you're a lawyer, or a law professor. Yes.

But bioethics is the field of law that you specialize in. That's right. And how would you try to define bioethics? You're starting with one of the hardest questions instead of one of the easiest. So really,

its origins in recent history lie in the 1960s and 70s, in two converging areas of interest. One had to do with population growth and environmental conservation. And in fact, the phrase bioethics was actually coined in the context of sustainable population growth. You may remember from the 1960s the zero population growth movement and the concerns the Malthusian future of overpopulation inevitably destroying the planet. And so the phrase was actually developed to discuss those dilemmas about

obligations to the future. And at the same time, in the 1960s and 70s, we were seeing real advances in clinical medicine. And we were beginning to see theologians, particularly, talking a lot about what should or should not be part of the medical toolkit, particularly things like genetic screening, which had implications for how much control we take over our personal reproduction. So genetic screening in the sense of checking someone's DNA as, a baby? Carrier screening through family pedigrees. Then in the 1970s, amniocentesis, where you would test the amniotic fluid and look for chromosomal defects. And these things created a situation where people had to make choices about whether to have children or whether to keep that

particular pregnancy, whereas in previous generations, this was up to luck, fate, God, however you understood these things. And so you saw these two things begin to converge about this notion of the ethical obligations that we should accept on behalf of others and also for what is considered to be a good life. And by the 1970s, late 1970s, we began to see theologians, the secular philosophers, the physicians, and later the lawyers, because we push ourselves in everywhere, beginning to have conferences and develop sets of principles. over things like how we should govern research with human beings and how much respect individuals are entitled to.

And that's really where the field kind of begins. So I would say to define a bioethicist is to define somebody who is trying to grapple with those questions. But today they might be sociologists or anthropologists. It could be empiricists who are looking at the patterns of behavior or it could be theorists who are looking for a theory about why you should or should not do a particular thing. I mean, it's obvious that what we can do today biologically and in terms of reproduction and so forth.

There are scary new prospects, interesting, promising new prospects out there. So the questions are changing very rapidly, but I still guess I'm a little bit surprised that the field of bioethics was not a thing before the 1960s. I mean, we had some issues, especially on the legal side, right, forever. So was it called something else, or were there no specialness in that? I think that the patterns before were different, and I think it's because, with the exception, perhaps, of understanding the role of bacteria and disease and the development of antibiotics, medicine in particular was fairly powerless. If you look back at what medicine consisted of, a lot of it was really public health brought

down to the individual level, eat right, et cetera. And so even these older theories about the different humors in the body, the wet, the dry, the hot, the cold. If you looked at it really closely, often it wound up being eat a balanced diet. Right. Wash your hand. Some of it was bad. And cutting people open and draining their blood, bad. All the cocaine, yeah.

Right. And the lead in the makeup. There were some very big mistakes. But in many ways, medicine was fairly impotent. And then suddenly, with the advent, particularly of antibiotics, It became powerful. And power is the point, because with each successive decade in the 20th century, we have gained more power over our own physical bodies, over our physical fate, and over, therefore, the fate of our offspring. Both knowledge and technology and technical manipulation has advanced incredibly fast.

Now, if you've ever gone to try and pick a cell phone plan. Right, I have. I think most people have had the same experience, which is, I'm so confused by the range of choices, each one with a different set of pros and cons. So I can't even match them across some kind of Excel spreadsheet that I wind up not doing anything. And I stick with whatever I've got because it's good enough, right? With power comes choice, and choices are difficult, figuring out first which choice to make

and why, or should you even have the choice? And you get to the point where you almost are sorry you have the choice. And that's the reason why the power over our bodies and over our futures created this kind of crisis that led to an enormous global conversation around what we now call bioethics, because every one of these new powers demanded us to ask, should we even have the power to choose? And if we are going to choose, which one should we choose? These are questions we never had to ask before.

And it's very obvious that the government would want to jump in and the lawyers with them, right? Is the government very reflective about these things? Is there an ongoing debate about whether the government should even be involved in what you might call typical bioethical questions? This is really a matter of almost political philosophy rather than moral philosophy, which is what most people think about in the area of bioethics. And so you get to very different answers very quickly because different countries are based on

different political philosophies. So there was something back in the 1970s, and I believe it was from Newsweek. I have tried to find it again. I can't. That really captured the different kinds of political philosophies around the world. And it went, in the United States, everything is allowed until it's prohibited. Fair statement. That's fair, yes.

In East Germany, everything is prohibited until it's allowed. And that was a very stark way of having the contrast. Of course, they continued by saying in Russia, everything is prohibited, especially if it's allowed. And in Italy, everything's allowed, especially if it's prohibited. And there was some truth to those too. So it did capture, in a weird way, very well, these very distinct political cultures. That drives government action, more than the actual question.

Take human cloning, which became an issue in 1998 with Dolly the cloned sheep. there was a tremendous interest in the media. There was the unfortunate revelation of how poor our education system is with regard to biology because people continue to imagine that cloning meant Xeroxing yourself and having an adult who's identical to you. I know. Do everything I need to do, right? And there was the misunderstanding that you could clone personality as opposed to body type.

So asked whom they would not want to clone, they'd say Saddam Hussein, who was the dictator of choice at the time. and whom would you want to clone, and they would say, Mother Teresa, as if you were going to get a selfless nun as opposed to somebody who was prone to scoliosis in her old age. Right. So with cloning, you might think that there would be a kind of common analysis that would lead to the same conclusion about whether it should be permitted or not by the government. Is it the role of the government to make the choice and what choice should it make?

In fact, that's not at all what happened. In fact, what happened is that with regard to cloning, we saw, again, the same reflection of governmental approaches. So in many European countries, where there is much more of a comprehensive governmental regulation, and where the existence of a public health care scheme means that you can regulate simply by saying we will or will not offer certain services, you had a government that could actually intervene and say this is not permitted. It almost had no choice, right? I mean, the government did everything, so if something's going to be done, the government's going to be involved.

Now, they're democracies, but the government had that power. Whereas in the United States, instead of having general prohibition, we had a general absence of law. There were a handful of states that passed statutes to criminalize cloning, often overbroad because they criminalized even basic lab research at the same time. I used to give a talk called from stem cells to jail cells about the scientists in these states. But at the federal level, the Congress. talked about it. There was some, you know, murmurings. Nothing ever happened. And it's partly because we don't have the easy avenue in to regulate. So that's number one. We can't do it through just spending decisions. And second, we have a constitution that lays out individual rights

against government action in particular. The government may not abridge my right to free speech or to assembly. And we also have this notion of a right. to make certain kinds of procreative decisions free of government, at least free of government prohibitions, not free of government regulation. And that creates a counterweight to government action that didn't exist in many of these European countries. So we wound up with different policies that didn't reflect our views about cloning. Everybody might have thought it's a terrible idea or a good idea. It doesn't matter. What it reflected was the power of the governments. And already we're into not only political philosophy but constitutional law in the sense that

Nowhere in the Constitution does it talk about reproductive rights or rights to have sex in certain ways and so forth. But there's the idea that there's this implied set of rights given by the Bill of Rights, not necessarily that it enumerated everything that we have, but it gives you the impression that the government should keep its hands off of certain things. And this becomes contentious once you actually get into the courts. You know, one fairly non-contentious area of constitutionally, protected rights is the right to marry. Now, we're talking just about heterosexuals, right?

But there's nowhere in the Constitution that says you have a right to marry. And yet it became the basis for striking down the laws in Virginia that criminalized marriage between people who are deemed white and people who are deemed black, right? This is the case of Loving v. Virginia, one of the best named cases ever. That was a great one, yes. Great name. So it was the right to marry? The right to marry.

Now, where did the court get it? Because the courts over the years have come to recognize that at the time the Constitution was written, there were two things that were in mind. Number one, something seems so obvious you didn't have to say them. Like getting married. Yeah, you should be able to get married. Everybody gets married. And it goes along with this philosophy that in the United States, if there's not a specific rule against it, right, then you're allowed to do it. But to have something as a constitutionally protected right is a little different than that because it means that you're protected.

more rigorously. You know, this is a digression, but we'll get back to the con law. Most of our liberties are ordinary liberties. My freedom to drive is an ordinary liberty, and the government can regulate that or even prohibit many of these things so long as they have a rational basis for it.

But when you have something that is specifically guaranteed in the Constitution, whether in the Bill of Rights or in one of these pronouncements from the court, as a fundamental right, then the government can't stop you from doing it unless it can show, first of all, a compelling need, not just a rational basis,

a compelling need that cannot be answered by anything that is less onerous. So that is a very, very strict standard that is applied. So with the right to marry, it raised it from being a state that says, well, we have a rational basis that intermarriage is disruptive to the source. social order and it puts the kids at a disadvantage might have passed muster. But if it's a

fundamental right, then now the state has to show that there's a compelling need to stop these people from marrying and that there's a disruption to society that can't be handled any other way. And they couldn't meet that kind of balance. Now, that right to marry is nowhere in the Constitution, partly because at the origins, nobody thought you had to say it. The second part of it is, if you look at what's in the original Bill of Rights, these are things that the English actually were trying to stop, like assembly and speech, or things that they were doing,

like quartering soldiers in our homes. So, of course, this is what was on their minds. And the right to have sex wasn't on their minds, right? So... They never contemplated that that would need to be regulated in any way. Actually, it was heavily regulated, but by the churches. Right? And it was regulated at the state level, not at the federal level,

because each state tended to have a different religious makeup. But the point simply is that over the years, the courts have recognized that the Constitution is not a complete document. It's a starting point. And they have tried to fill in the gaps over time. And one of those gaps was the right to privacy, where privacy is a variety of things that are not just about being able to keep information to yourself,

but also about being able to have a specific, of action that is free from government intrusion and a sphere of personal relationships that is free of government introduction. And on that basis, we got things like the decision that Connecticut is not allowed to criminalize the sale and use of contraceptives for married couples because the marital relationship is an intimate one that should be beyond the government's intrusion. And then it moved beyond that to a right to privacy about the control of your own body when single women were now protected by a fundamental right to have access to contraception

so that the government couldn't criminalize it for single women. It's no longer about marital intimacy. Now it's about controlling your body. And we really do see that playing out through the Roe v. Wade decision about controlling my body during pregnancy. And now we see the extension of those things in other areas like the right to marry being extended beyond the heterosexual couple. And I think this is just a crucial point in terms of understanding how the legal system

works here in the United States, that the courts do have this idea that there really are rights that can be used to strike down legislation, even though these rights were not explicitly written into the Bill of Rights or the Constitution, that there is this feeling that we should err on the side of letting people do things, even if those are not delineated, item by item. I think that's now become a matter of contention, interestingly enough, right? because there grew up, starting with the Federalist Society a couple of decades ago, this kind of movement within legal thinking, that the notion of a living constitution in which courts over time

are constantly trying to fill in these gaps is one that doesn't have any limits, that you have no control over what the courts will do, and therefore we need to put the brakes on the courts. and here's the way we'll do it. We'll say they're only allowed to use things that were actually written down in 17, 89. Right. So originalism, roughly speaking? Right. Now, I have to say that many of these people

who called themselves originalists, including Justice Anthony Scalia, one of the most famous ones, failed completely to be originalists when it led to an outcome they didn't like. So there was a lot of inconsistent application. But nonetheless, that was the kind of clarion call. Well, and it sounds reasonable when you put it that,

way, right? Like, we need to protect against the expansion being completely unchecked of the powers of the courts do whatever they want. And the powers of the Congress. So in the 1930s, when the debate was about a related set of concerns called substantive due process, again, not about whether the procedure you use is fair, but about whether this is an area the government should be mixed into at all. We had the Congress passing laws on, for example, worker, wages and health protections, which were struck down by the courts as being beyond the purview of the government. And so this led to a crisis again about how do we rein in the courts from, in this case, undermining congressional enactments. So, you know, from different eras, you get this kind of

seawing because it is a country with a kind of tripod of key institutions that are all checking one another. So it's natural that they go through a wobble. Right. And you mentioned the right to privacy and how this gets implemented. And obviously one big area of clashing is between individual consciences, especially as they reflect religious beliefs, versus the demands of the state to do one thing or another. There's many different areas in which these clashes happen. Do you have a general theory of how we should adjudicate it when the personal religious beliefs of a citizen ask that citizen or demand that that citizen do something to the government? is not happy with? I do, but it's not uncontested. There are people that disagree completely.

I think there's two levels on which you address this. One is the very abstract level of what is the role of religion in the public life and the shared public life of people in the United States. That's about whether or not I should see the public square, metaphorically speaking, is one where everybody expresses their religious views, even if it adversely affects somebody else. My religious view says that Black people and white people

shouldn't marry, and so I don't want to give an interracial couple housing in my building. So the word express their religious views. There's a lot of kinds of expression, not just talking. That's right. Or wearing a symbol. There is also the, because the argument there would be I'm living my beliefs

by rejecting them for housing, because if I let them live in my apartment building, I'm essentially blessing their union. Right. Or even tolerating their union is considered to be a violation of my beliefs. That's, so that one view is that this cacophony of voices in the public square operates to the benefit of us all, because we all get

to do what we want, even if it hurt somebody else. And we all have to figure out how to protect ourselves against somebody else. The completely conflicting view is that the public square should be one that is absolutely a vacuum when it comes to religion. And you want to express your religion, fine, go do it in your own living room, go do it in your own church, mosque, synagogue, temple, whatever. But when you come into the public square, you must abide by a set of rules that are going to be the same for everybody. And nobody's allowed to feel like they are somehow an oddity or a minority or anything like that. So that's one set of competing theories. I had to deal with this because it's a fundamental problem.

More narrowly in bioethics, we have seen it really come to the fore when it comes to medical professionals and certain medical procedures. in particular contraception and abortion to a somewhat lesser extent some of the issues around how it is that we help people die peacefully. Okay, yeah, that's an important one. And here, I think that we shouldn't be looking at it as a contest between religious expression

and secular equality. I don't think that's the right way to look at it. I think we need to ask about power dynamics and what it means to be a professional because as a physician or as a physician or as a pharmacist, you basically are taking an oath to serve your patient. And you have more power than the patient. In fact, for doctors and pharmacists, there's a monopoly power.

I'm not a physician. I'm not allowed to prescribe contraception or perform an abortion. Only a physician can do it. And because it's a closed community, the community has an obligation to make all legal services available. Otherwise, we would have the public utilities, the electric company could say, we're not going to provide electricity to plant parenthood or to the KKK headquarters. And you don't want that.

They just give out electricity. Right. And so I would say we need to look at power dynamics. So, you know, in the area of conscience, I would find it more defensible. If somebody who's a checkout clerk at a supermarket said, I am a devoted vegetarian and vegan, I don't believe in the use of animals for foods. So I'm simply not going to ring up any animal. products. And I don't want to be fired from my job. And they don't want to be fired. That's the point

with the physicians, too. They don't want to be fired. They don't want to be denied promotion. They don't want to be vulnerable to malpractice suits. And here the clerk doesn't want to be fired. And I actually think that's more defensible because it's much easier for somebody to go to the other line or for the company to make sure that they've actually hired a lot of people, most of whom will do animal products. And there's really not the same kind of power differential that there is between a doctor and a patient. So you think that there's a social interest in these cases where we as a society have given so much power to certain groups of people. Part of the contract is, okay, then you have to do the things that society wants you to do. That's exactly right. And if you really don't want to take on those obligations, you should look for a different kind of vocation where you don't find yourself in this kind of conflict. In other words, should your religious restrictions that create more, crisis for you be your problem? Right.

Or should there be everybody else's problem? Right. Because we do want, on the other hand, to let people have freedom of expression in the sort of narrow sense of expression, you know, worship in whatever way they want. It gets into not just professionals like doctors or pharmacists, but families, right, parents raising children who don't want to give certain kinds of medical care to their kids. And you might think that doctors should be obligated to do the appropriate procedure. and yet also believe that parents shouldn't be obligated to have those procedures done to their kids.

So you've now touched on two more topics that are central to the way we discuss things in bioethics. You've touched on the notion of individual autonomy and capacity to give consent, very closely linked. In the case you're describing of parents in medical care, we would in bioethics probably find ourselves talking about the parents having the right as autonomous, competent individuals to make decisions about their own health care or lack thereof, and that when their children come of age, their children would have the same privilege.

But that while the children are young and therefore really not able to make the decisions for themselves, now the question is, do parents have unlimited discretion to make decisions for their children? Or is there some point where we stop and we say, you know,

now it's the society that makes the decision? And of course, we take children away from abusive parents. And we don't argue that parents have a right as autonomous beings to beat their children. Now, with people who engage in things like faith healing, there's no evil motive like there is with beating your child. But the result can be the same, which is that the child is gravely injured or dies. And that is the point at which the state steps in. So most places have some kind of statute that tries to lay out. a borderline where the parental decisions are now putting the child at high risk of having

permanent or serious injury or could lead to death, at which point the state takes over. Yeah, I think this gets right into, I think that we're fuzzy sometimes. We fool ourselves about the relationship between morality and religion and law, right? Like we tell ourselves, well, you can have your personal religious beliefs, that there is the law that everyone obeys in the country and they should be able to get along. But of course, we use our personal notions of morality to guide what laws we think there should be, right? Like murder is bad that feeds into passing a law that murdering is bad. And that goes back to complete the cycle into the fundamental nature of living in a pluralist society, right?

Like, we again, we pretend that we can all get along, even though our fundamental values might be very, very different. it seems necessary to me that the ability to obey your own personal fundamental values can only go so far if you do live in a pluralistic society. This, you're absolutely right, is one of the great challenges of a country that talks about being a melting pot. In fact, I think it's more like a stew. A melting pot suggests that everybody winds up the same. That is not what is happening. As somebody who grew up in New York in an intensely ethnic borough with a little bit of this, this and a little bit of that, I can tell you that it was a stew. The Italians, the Irish,

the Eastern European Jews, the South Asian Indians, every one of those households had a distinctly different culture. And yet, when we all played together in the street, there was a kind of common soup that all these little chunks of culture were sitting in and flavored all of them. I mean, honest goodness, I grew up not being completely sure whether a lasagna was a Jewish food or not. And that's because of the world that I lived in. So if you're going to live in a stew, you have to acknowledge there are going to be these differences.

Right. So how do you decide what's going to be the common soup, the common flavoring that tinges everything? You know, there are philosophers like John Rawls, with whom I understand you had a chance to study, who worked really hard to try and articulate some methodology by which we could arrive at rules for law or governing or common morality. And a key thing that he talked about was the idea of so-called publicly accessible reasoning.

That is, you may conclude that murder is wrong because you are a devotee of the Ten Commandments and the Ten Commandments say, That Shall not Kill. I may come from a totally different culture. I don't look to the Ten Commandments, but I have a culture that lives, by a golden rule. I don't want to be murdered. Therefore, it's wrong for me to murder. Therefore, I conclude murder is wrong.

And we now converge on a common moral rule and even a legal rule that murder is wrong. Because we can get there through some common sets of reasoning. Now, if where you're coming from is one where there's no way for you to explain it except by reference to your particular religion.

There's no non-faith-based argument at all that could work for somebody who doesn't share your faith, then we have a problem, and that would not comfortably fit in our laws, because it really is a rule that only makes sense to a subset of the population. Well, that's interesting, because I think that where you ended up

was slightly different than where I thought you were going. I thought what you were going to say was that it kind of doesn't matter what your justification is if the practical implementation of that justification agrees from lots of different people. Fair enough. And I did. I kind of slid there. And I think that both of those are true, actually.

If we can both come up with the same solution from different premises, that works. If you can step back from your, let's say, religious premise that this is ordained by a deity. And yet you can explain to me, who doesn't share your view about that deity, why it is nonetheless a bad thing, and persuade me,

then that would be the publicly accessible reasoning. The reasoning that all people, people could somehow get on board with without having to accept where you're coming from in terms of religious faith. And both of those things would lead to laws that are going to be manageable across the population. So that sounds great to me personally. Now there will always be exceptions, right? I mean, we can imagine families where, in their view, they have this religion thing figured out. They know what God says and God says certain specific things. And the fact that a child might not get a certain medicine and therefore we'll die is ultimately a good thing because the child will go to

heaven as opposed to if we did give them medicine, then they would not go to heaven. And that sounds like an irreconcilable difference with the public demands. I think there are those moments. I do think there are those moments, yes. And we just have to force them to suck it up, right? I think we accommodate them so long as it is an autonomous, rational, competent adult who's making the decision for him or herself. Where we change the rules is not on where your irreconcilable difference affects you and you alone. It's where it affects somebody else who in no way is in a position to have welcomed this kind of decision for themselves. And that's why we make the distinction. And that, so the flip side of that at the end of life would lead you to say that

people should be able to decide what their end of life is. I mean, we're very touchy right now, right? We're I've talked about this on other podcasts. We're undergoing this transition when it's becoming more common to have death with dignity laws or something like that where people don't need to go through all the possible medical procedures to keep themselves alive or even can essentially commit suicide, can essentially end their own lives. And this is not something that I think a lot of people are yet happy with, but it would go in the direction of that give the person the grown-up autonomy over the

their own decision. And indeed, if you look at going back to the Supreme Court, you look at the Supreme Court decisions, you see that the decisions around things like contraception and abortion included language about liberty that would comfortably encompass the right of the individual to be free of a state law that criminalizes the effort to take a drug that's going to allow you to die comfortably instead of having to starve yourself to death or forego comforting medical procedures. Now, we have buried in our common law, which is not constitutional. It's the kind of ordinary daily law that we have going all the way back to England and is handled through things like civil litigation, like torts. We have there this notion of bodily autonomy. That's why

if I touch you in a way that is harmful or offensive without your permission, it's a battery, and I have to pay you damages if you sue me. And on that basis, people have long been entitled since the 1970s has been clear, to refuse medical treatments, even medical treatments that are needed to keep them alive. The death with dignity argument was about whether that also should include, not just the right to reject a physical intrusion,

but to take upon yourself something that will help you die more peacefully. Something active. Something active. And that's where the debate about liberty really went. And I've always found it intriguing that the court has not really faced it the way they could and really should. Because if we're going to talk about a liberty

that encompasses your psychological and emotional state, you're talking about things like contraception for men. Their bodies are not implicated. They're not the ones going to get pregnant. So if you think there's a right for men to be able to obtain contraception without the state throwing them in jail,

you're saying that right of a man men have a right to control their futures in this very important way, that would suggest the same thing would be true at the end of life. But if I may, all of these things go back to the earlier point about power. Because whether it's modes of conception with gamete donation and surrogate mothers and IVF or it's death with dignity and use of drugs, part of the argument simply has been whether human beings ought to have any control over these very fundamental moments in the human existence, or whether that ought to be somehow beyond our control

and in the hands of and fill in how you think of it, your deity, fate, nature, something else. Right. So it sounds like the distinction that you're trying to emphasize here is that we can allow for autonomy of persons for their own well-being, but as soon as they are put in a position of power over others, they have to obey the rules. And you'll notice, by the way, that in the public health world, We are constantly running up against the libertarian objection to public health law.

So if it's about me having to not pollute the water that you drink, we understand that. But if it's about why I can't drink raw milk, which has a objectively higher risk of giving me a really ugly condition, which will have me vomiting and with diarrhea for days, any laws that prohibit the sale of that to me are viewed as nanny state. because they are impinging on my autonomy, right? So we see the same debate playing out over and over and over in the United States. I'm kind of on board with the idea that if someone really wants to poison themselves by drinking raw milk, they should be able to do that. And actually, the way I said it is a little bit misleading because there is no law that says you can't drink raw milk.

The laws are about prohibiting the sale of it. Right. But that's kind of... And that's a little different. That's about whether we can regulate the economy, right? And it's exactly why in most states where there is some kind of prohibition on the sale of raw milk, there's also an exception for the farmer's own family, for guests on the farm. There are people who then bought shares of a farm so that they could be considered the farmer as well in order to be able to have access.

But it is about trying to make sure that you don't allow a profit to be made off of the distribution of a product that is manifestly high risk. You must know just this week in California, was a controversy about cancer warnings on coffee. Yes. You know, California loves putting warnings on things and saying they're going to kill you. And I think that the breaking point was when it seemed as if you would have to put a warning on coffee that you got at Starbucks saying this might give you cancer.

And finally, people said, no, no, no, this is going too far. I mean, it's already very clear to anyone who lives in California that there's a sign in every establishment saying things you're going to give you cancer. And we ignore the sign. It becomes useless. It becomes counterproductive. Well, yes. So there's certainly the overwarning problem.

and all the warnings then become a mush. There's a second problem, though, and that is the failure to make a distinction between hazard and risk. Many substances are a hazard. Coffee, this week also, the news, glyphosate, which is a weed killer that's used in Roundup Ready crops,

is present in Cheerios. And so the headlines were all about how your children are being poisoned in their Cheerios. But in fact... I think Cheerios are known to be unhealthy for other reasons. but a hazard is something that has the capacity to cause some kind of harm but the risk is the hazard and the probabilities and so you have to ask what is the exposure that is needed and in the case of coffee and frankly in the case of glyphosate as well the exposure has to be i don't know what the number

is many many many many many orders of magnitude greater than anybody consumes in order to actually have this possible effect. Remember, this is only probabilistic that it might, in some percentage of situations, cause a cancer. So this is part of the problem of the overwarning. If you only talk about the fact that something is capable of causing cancer, you know, most of the foods we eat would wind up being on that list. Because if consumed in sufficiently enormous amounts, you could distort the human body in ways that then, in turn, will cause some failure of your immune system or something that eventually, da-da, leads to cancer. So California and many of the other groups that want warnings for anything that ever showed

that it could cause cancer in grossly overfed, caged rats need to actually add in some mathematics. Exactly. No, you're speaking in our language here. A whole theme of my various podcast episodes is calculating probabilities, updating them, being good Bayesian, evaluating things rationally and trying to make decisions. and it's not very automatic, right? The human brain doesn't work that way. We see, oh, there's something that could be cancerous in here, therefore, let's not eat it.

And it takes me back to what I wanted to pick up a previous thread. We talked about how religious beliefs could lead people to object to certain governmental mandates. But isn't a lot of that really coming down to just squickiness? Isn't a lot of what drives people to object to very cutting-edge, procedures, whether it's cloning or stem cell research or whatever, just the fact it doesn't seem natural to us. It seems somehow icky, and therefore let's err on the side of not doing it. Am I oversimplifying people I disagree with?

No. In fact, that is not everybody who opposes these things. There are very distinct different approaches to the objectors to many emerging technologies. Some are very careful to be talking about downstream consequences. and their lack of confidence in institutions or human nature to avoid the extreme unwanted application of these things. For others, it really is a religious view about the role of humans vis-a-vis a deity

and where we should stop having control, period. But yes, there's another group for whom, it's unfamiliar. It seems to have a lot of power, and I've heard that it might be exploited in ways that are unpleasant, right? So I've heard that your coffee may cause cancer. Right. So they've heard the hazard, but they haven't actually taken any information about the risk factor, right?

And in general, it's unfamiliar. And unfamiliar often leads to what one very prominent bioethesis coming from a fairly conservative end of the field called the wisdom of repugnance. Ah, so they were trying to elevate this visceral reaction. Into a principled approach. that if people share, you know, widespread shared repugnance of something, it's telling us something deep, even if we can't quite articulate it. That's not crazy, actually, you could put it that way. It's not crazy at all, but it can also send us off in terrible directions because it was the repugnance with intermarriage between people of different races that led to the anti-messageination laws. It was the repugnance of people who are darker that led white people to enslave dark people.

There are many examples in which this repugnance has been really catastrophic. graphically damaging to say nothing of what it did for generations and generations of people who are homosexual in their orientation. And transgender people now. And transgender people now, which is a good example of something which is unfamiliar and I think you're right. Other people say, oh, it's icky. My only concern is I really want us to get a different pronoun. I don't want to use the word they. I really don't.

I use that. I'm a, I'm just, my seventh grade English teacher is still within me. They is a plural. It is not a singular. You said a great English teacher should read Shakespeare and Jane Austen. They use Bay as a singular pronoun all the time. Yeah, but I forgive them because I love their writing.

But you're right that there is this kind of ick factor. Actually, I coined the phrase yuck factor, same concept. I think that that is one that is manageable because with familiarity, people who are in the yuck factor camp now begin to split into supporters or opponents with a more carefully thought-out basis for the opposition. It might be religious. It might be consequentialist.

I think that it's going to lead to something bad. But the kind of undifferentiated yuck is now being differentiated into reasoned conversation. Right. So that makes perfect sense to sort of, it's not that, well, we think it's yucky, therefore it's probably wrong, but we think it's yucky, therefore let's think about it, right? Let's think why exactly do we think it's yucky? Is it coming from some principled moral stance, or is it just our reptilian brain? and has never seen this before and is reacting badly.

Exactly. And so things like test tube babies or artificial insemination, those were like hot topics of debate a few years ago. And now I don't think that there's that much debate left. We're kind of on board with that, right? We are, in fact, in vitro fertilization, which you referred to as test tube babies, and I'll resist that just because it continues to give,

it continues to give this image of babies in test tubes. In vitro fertilization has now become, something that is so familiar because so many people have used it that it actually began to impinge on the abortion debate. You know, originally, IVF was controversial not only because it was unnatural, but because for the very first time in human history, the human embryo was outside the human body and was subject to manipulation. It raised, again, this power, the power to discard, the power to manipulate, the power to experiment on, all kinds of things we never had to ask ourselves before, are we allowed to do that, should we do that?

And those were influenced in large part also by the abortion debates. But now we've had state after state that has tried to pass what's called a personhood amendment. For people who oppose abortion rights, there's been an effort to pass either a constitutional or legislative provision that says, from the first moment of fertilization, this entity has the same legal status as a liability.

born baby, which would have incredible number of implications for how the embryo has to be managed and protected and guarded. And those person who fail, person who had failed, person of the amendments have failed every single time, even in highly conservative states with a majority of the population opposed to most abortions. Why? Because it would have the effect of basically criminalizing in vitro fertilization. And there are just too many grandmothers who wouldn't be grandmothers. If their daughters hadn't had a chance to use IVF. Don't get the grandmothers arguing against you. You're not going to win.

But isn't it also true that Ova get fertilized all the time but don't get implanted? Sure. And so that now every woman is a murderer, right? Well, intent is an important concept, both in morality and in law. Okay. Right? So, yes. I think that, I think that that observation is really important for those who pin everything on the moral status intrinsically,

due to its own biology of the fertilized egg with the early embryo. To observe that, in fact, a vast majority of times, an egg will be fertilized, but it's fertilized at the wrong time of the month, and so the uterine wall is not ready to capture it, and it passes out of our body. We don't even realize that we had a fertilized egg within us because it's an ordinary menses cycle. And that even for those that take,

there are a regrettably high number of miscarriages, whose causes, by the way, are largely unknown because of the restrictions we've placed on ourselves. Because we can't do research, because it's icky. Because of the restrictions on doing research, among other things, with human embryos at a more advanced stage. So if your whole point is that it's about the biology is what yields moral significance, then the fact that most fertilized eggs have this high risk of not ever becoming a developed fetus or baby seems relevant. But I think that even though we talk about abortion in terms of the sanctity of the fetus and the right to life of the fetus, that buried within it is actually an entirely different thing, which is all about intent. Because the woman who loses the fertilized egg through no action of her own is innocent.

But the woman who makes the decision to do exactly the same thing, which is lose that fertilized egg, is now evil. Jezebel. Because she intentionally thwarted this ongoing process, which is a very important thing. might or might not result in a human. And it's that intent that I think is really important here. Even people who oppose abortion rights generally often make exceptions for rape or incest because those are presumed to be involuntary experiences for the woman or the girl in the case of incest. So in those cases, she's innocent. And therefore the abortion is okay, even though the sanctity of the fetus ought to be exactly the same. If you went all the way, then it's...

So within the movement of people who oppose legal abortion rights, there is a kind of split. There is a fracture at that point between those for whom it really is about the sanctity of the biological life and where biology determines your philosophical status. And those for whom it really is not about the fetus, they think it is, but it's actually about their evaluation of this woman who went ahead and had sex but doesn't want to accept the risk of pregnancy as a, fill in the blank, a punishment, a deterrent, or as her natural fate as a woman in terms of the way they think about men and women. Yeah, I mean, I think that religious traditions often fall into this trap, but even just people more generally like to judge other people as being bad and past law is

not letting them do it, right? It's a very, very human kind of thing, and something we need to watch out for in this sphere. There is a phrase that you hear tossed around all the time. There ought to be a law. Right. Right. And... Because I don't like it. It's really difficult in public conversation. It's even difficult in my classroom with law students to make people step back and say, okay, is it possible? I think this is wrong, but I don't think that it should be the business of the government to determine whether you can do it. It should be social pressure. It should be religious teachings. It should be the advice of your parents, regardless of religion. And both liberals and conservatives sometimes are more willing than they should be to pass laws that help their own

personal preferences, right? You're absolutely right about it being so instinctive that if we think something is just terribly wrong, that we want some power to stop it. And the government and laws and the enforcement power of the government seem like a great way to do that. It's certainly more direct. But in fact, there is a world of difference between the things that are right and wrong and the things that should be legal and illegal.

We make laws about things that are not. wrong. They're actually fine, but they have consequences that we can't accept. You know, the knowledge that I have about a particular stock because I'm a stock, because I'm on the board of directors, might make it possible for me to buy and sell and make money. Now, making money is not wrong, and using information is exactly what we celebrate, except it's an unfair advantage, and it undermines the integrity of the market and the confidence of the non-insiders. And so we say, that's illegal. It's called insider trading. Now, the law does not necessarily. necessarily correspond point by point with anybody's morality, and nor should it.

Right. So I had a podcast conversation a couple episodes ago with Carl Zimmer, the science writer, and we got into the crazy world of gene editing and CRISPR and the future of designer babies. So I'm sure, I mean, I think it's pretty obvious, that there are bioethical and legal concerns coming up here. What are the issues that you worry about the most in this frontier? Well, let's first make some distinctions in the application areas because they raise very different concerns. For those that are unfamiliar with these things, this is another form of genetic engineering.

So it's a continuation of something we've been doing for a while. But it is much more precise, much more efficient, and interestingly, can be done by people with less training in facilities that are less sophisticated. So the way YouTube decentralized movie making and really transformed a lot of things, this decentralizes a key area of science in a very interesting way. The democratization of our knowledge about our own genes. And the democratization of what we can do with them, right, instead of having to go to a trained physician who has a sophisticated lab. So, once again, we're talking about power.

And this gives more power to more people to do more things with more power to predict whether it will work, right? Okay. So let's talk about two very distinct areas of application. One is what you'd call somatic, and the other is germline. So germline means eggs and sperm and embryos, where if you make a change, it's not only going to affect the person who comes from that embryo or those eggs and sperm, but their own eggs and sperm will have been affected.

So the grandchildren, great-grandchildren, all the way down the line, will also be affected until that particular trait mutates the way things do in nature. And why is that called germ-line? Because the germ cells are the gametes are the eggs and sperm. I think of germs is, you know, causing diseases. Yeah, no. But think about germination in the world of plants, right? Good.

Thank you. That helps me connect the truth there. And so that's one area of application. That's the far more controversial one. The less controversial one is what we call somatic. It's where you change cells, any kind of cell except the egg sperm and embryo. So if you change some of the cells, let's say, in my liver, I will feel the effects, but my children will not, okay, because it doesn't affect my eggs.

That is what we call somatic editing, and so the advantage there is it only affects the person who's being treated. So now we can restrict ourselves. We're only going to talk about people who are competent and adult, or if it's a child, somebody for whom we're doing this for their own welfare, like preventing or curing a disease. So most people are going to be on board with that? Most people will absolutely be on board with that. And, in fact, they already are because we're, We're already doing gene therapy to try and deal with cancer and blindness, but we have been

largely unsuccessful because it's just such an arduous process. And this may be the ticket to making it a less arduous process. The one area of controversy that does develop, even in somatic editing, is in changes that don't cure or prevent a disease, but alter an already existing trait that we would deem healthy and within the normal range of human capacity. So take somebody whose muscle strength is average, and if you could edit so that their muscles now became unusually strong, that raises controversies because of the perception that somehow this creates an unfair advantage.

Of course, we do that all the time through other mechanisms. Right, yeah. Right? Whether it's nutrition or it's training. So it gets into another entire debate about meritocracy and, you know, and it's, you know, earning things versus having them given to you and fate because some people are simply born lucky to have stronger muscles right yeah so why are they more deserving than somebody who uses editing to get to the same point or someone who's born wealthier can afford a jet to get where they want to go so

that is the so-called enhancement debate right um and in in many ways it's more about this concern about society and equity than it is about the actual phenomenon of the transformation up to the point where you're talking about a transformation that takes you beyond known human capacities. A transformation that gave you something profoundly different, allowed you to see into the infrared or the ultraviolet, which normal human beings can't do, that raises different questions about whether or not

we want the power to actually fundamentally alter the parameters of what we call homo sapien. So do we? That's a very long conversation. Let me at least address germline first. Okay. The conversation around germline circles back again and again to this issue of human reproduction because it is raising fears about designer babies.

This again is biologically untenable. It's very hard to control traits. There are very, very few things that are going to be controlled by a single trait. Things are multigenic. By a single gene you mean, yes. Yeah. They're multigenic. So it's many genes, and the genes are operating against a particular context and background.

And furthermore, we are hardly ever discussing something called epigenetics, which is what affects how strongly the genes operate, right? It's like you and I could play the same keys on the piano, but I'm using the pedals differently. It sounds very different. The epigenetics is the petals. And now we're beginning to learn more and more about the effect of the microbiome, this incredible number of critters that live inside of us that also determine how our genes express. So biologically, we can't design our kids. We really can't. But shouldn't we, as philosophers and bioethicists, still ask the question, I mean, it seems like a technology question, whether or not we can't.

And I'm kind of agnostic, I don't really know. But maybe we're wrong. Maybe we can. Maybe, you know, 50 years from now, we figured out how to make everyone look like Brad Pitt and Angelina Jolie. And is it bad if people want to do that? Is there a principle, or is that just a yuck-based stance? Well, it's hard to answer something that seems so patently impossible with an answer that. is sober. And so I will tell you first that I'd rather look like Beyonce.

I'm outdated in my references. You really are. That said, we make choices all the time to try to influence the probabilities. There's something called a sort of mating, right? We tend to marry or otherwise have, you know, children with people from a limited range. And so that changes the probabilities that our children are going to be taller, short, fat or skinny, brown-haired or blonde because of this assortive mating, right? And it happens for all kinds of reasons. I mean, even within a religious group, right,

in my neighborhood, which was mostly, as I said, this mix of people, but in my little part of the neighborhood that was Eastern European Jewish, the men were short. They were just short. My father was five foot three. And if I married within my group, my kids were going to be short. You know, and so that's, in a sense, designing, right? Or I could choose to deliberately try to find a guy as tall

because I wanted my children to be taller. You know, we do this all the time. So part of it is my resistance, the idea there's something fundamentally alien about trying to change the probabilities of the outcomes. Because with genetics, it's all about probabilities anyway. part of my concern here is that I do think that there are many people whose concerns are just very much consequentialist. That is, we think that we're likely to make a mistake and the kid's going to be hurt by it. That's a risk assessment problem that we face all the time, and I completely am on board with that.

We shouldn't be doing this until we have an incredibly high degree of confidence that the outcome is going to be to the benefit of the child and any subsequent descendants, which is why germline ed. to prevent a devastating, often lethal disease seems to me to be a far easier case to make. It expands the child's capacities in a way that guarantees the open future, right? That philosophers like Joel Feinberg have talked about is a kind of moral obligation. Preventing a disease. That one's a closer call, but I still think very easy to justify. And every time we take a vaccine, we are enhancing ourselves because we're enhancing our resistance to disease. So this is a form of enhancement.

I think makes sense. Again, with attention to whether or not there's an unexpected consequence by protecting us against this disease, do we suddenly make ourselves vulnerable to a different one? That's a very tricky problem with multigenerational effects because you really need to have a multi-generational experiment to see how it plays out. And that alone may make it impossible to satisfy these conditions for making it an ethically defensible thing to do. Others, I think, though, have an objection that I think,

goes more deeply to the notion that we shouldn't tinker with the human species. And here I get concerned that people have an outdated notion of what it means to say something is a species. Okay. I think that there is, unfortunately, in high school education still, this way of teaching biology and evolutionary theory as if it's all vertical. Genes are only transmitted vertically. And that they go from the past to the future through the parents to the child to the

child and that the species is a closed universe of genetic traits, when in fact, evolution is not a tree with branches and twigs ever separating further out. It's this chaotic mishmash of things that are constantly crossing back and forth. We have genes within us that come from wildly different species, that we've incorporated into our very cells, right? So there's a horizontal movement of genes that blurs the notion of species line. And so I think that there is an overly romanticized notion of what it means to be a homo sapien that leads people to then get concerned that we are somehow undermining the integrity of the concept of homo sapien.

I don't think you can because I don't think that concept is as pure as people imagine. Yeah, I think that philosophically that's exactly right, that we shouldn't, we should know better by now than to treat things like species or even individuals as, you know, out there in the universe inviolable categories that we can't break down. You know, there are things that are invented, they're concepts that are constructed by human beings to help us understand the world a little bit better. And as technology evolves, then naturally we're going to hit the boundaries of where those ideas become useful. I personally think, and I said this to Carl also, I personally think that fretting about where gene editing is going to go in terms of human enhancement,

is kind of a waste of time, because I think it's going to happen. I think that I don't know how well it will happen. I don't know how effective it will be, because like you say, there's a huge amount of non-linearity in things we don't understand, but I think that people are going to try. I think that people are going to try to have babies that are 10 feet tall so they can be basketball players. You know, maybe so, but I think that it's far more likely

people are going to try to enhance themselves in ways because it's much more direct. If what you want is to be 10 feet tall, then actually take a live-born child and inject that child with something to try to make the child grow taller, which parents do, by the way, now when they give their kids human growth hormone, even though the kids are not human growth hormone deficient. The kids are simply at the far lower end of the growth curve, and the parents recognize that

socially, particularly for boys, because of the nature of our society, that can be very disadvantageous in the marriage market, even in the employment market. So much more efficient. If you want to make your kid have a different capacity, do it when the kid's been born. Doing it at the embryonic stage is like taking a pellet gun and shooting it out into a parkland, hoping that something lands in the right place and that it doesn't have all these untoward effects because of other places that had an effect. Once the kid is born or once you do it to yourself when you're an adult, you can be far more targeted and far more confident you'll get what you want. Okay, that's good to keep in mind as we go forward.

We always think about starting with human beings and making them better, making them smarter and faster and stronger. So what about starting with animals and making them smarter? Do we need, as bioethicists, to worry about who counts as a human being? What if we take a chimpanzee and make them really smart? Or a dolphin? You don't even have to change any of their current capacities to face that problem. In fact, in law, there's something called habeas corpus motion. It's a motion to the court to force those who have somebody in custody to show why they're entitled to have somebody in custody.

And that habeas corpus motion has now been brought in several different courts on behalf of chimpanzees that have been owned and kept in captivity by zoos, by circuses and other kinds of displays. And so far they have lost in the courts. But the argument that they're making is that even without any change, chimpanzees have an intellectual and emotional life that is complex enough that they're, that they're making is that they're making, that they're making, they're not. they're capable of suffering. And that once you're capable of suffering, you have a right not to be forced to suffer. They may not have a right to go to college because they couldn't actually benefit from it, right? Or to vote.

Or, in other words, it's an idea that rights are corresponding to those things where the rights could actually be experienced and give value. That's why, in fact, we already acknowledge this. I am not allowed, under the law, by the way, to torture my cat because she can suffer. I am, however, allowed to bring her to the veterinarian, even when she is young, and have her put down, so to speak, which is killed. Right. Why? Because of our belief that the cat can experience suffering but has a very limited understanding of future.

And so there's not necessarily a right to continue your own existence, but there is a right not to be miserable in it. And so you don't even have to enhance in order to get to this argument about whether or not animals should be treated differently. Do chimpanzees have a notion of the future? Well, I think it's a little unclear. I am, I think, the only law professor in America who's ever been on a tour of chimpanzee research stations and has been sprayed head to toe with chimpanzee urine. All right. This is a unique experience for a law professor, yes.

But it was in the context of the NIH, the National Institutes of Health, deciding what they wanted to do about the use of chimpanzees and medical experiments, whether it should continue with NIH funding and what kind of conditions should they be held in if they were going to be used. And the family units are very real. The emotional context is very real, but the inability to communicate makes it terribly difficult

to assess notions of their consciousness and their notion of futurity. And I leave it to the psychologist who've come up with some very clever experiments to test whether animals have a sense, sense of self, for example, to try and help us figure that out. Now, could we edit animals to make them more useful to us, regardless of whether it makes them more human?

Sure. The same way we breed animals all the time to be more useful to us. And we've bred all kinds of farm animals to be more useful, and we've bred pets to be prettier, even though, in fact, some of those breeding methods have led to high degree of genetic misfortune, let's just say. And terrible, yeah. You know, like the hip dysplasia that you see in some breeds of dogs, which is a direct consequence of the inbreeding that's done to make the dogs look a certain way.

So, again, the question with editing is, if we can do it that way, why can't we do it this way? That's the why not. Or since it's terrible that we're doing that, maybe we should forbid this as a starting point to forbid the other ways we're already doing it. Those are two good arguments to be having. Yep. And a lot of it, again, depends on whether or not what you do. is going to

enhance the welfare of the subject of your experimentation when you use an animal or a human being we are animals by the way too but when you use a human animal just for your own purposes like enslavement we've come to recognize that is a wrong that's Emmanuel Kant's notion

of not turning people into simple instruments of your own needs and desires that they are an end in and of themselves And if we were to think about animals that way, too, it would put a natural limit on how much we manipulate them. Well, it certainly sounds like as a professional lawyer and bioethicist, you're not going to run out of things to do any time soon. Not as long as the scientists and the biologists keep doing what they do.

I think we're going to do our best. So Alta Sharo, thank you so much for being on the podcast. You're very welcome. It was a pleasure. School's first federal credit union serving school employees and their families. Spring cleaning isn't just for your home. It's for your finances too. Take a fresh look at your budget and cut expenses you no longer need.

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