Consent as the boundary of the organ debate
In the December 2014 episode, Bob Zadek framed the question of compensating organ donors by stipulating the consent: he asked whether society should prohibit a consenting adult from selling a body part, adding that the show was assuming informed consent rather than exploitation, and describing the hypothetical seller as middle-class America Virginia Postrel on Stasis vs. Dynamism (2014). The stipulation matters because the federal statute at issue, the 1984 law making it a federal crime to give valuable consideration in exchange for an organ, was passed amid a moral panic over a scheme to bring poor people from Pakistan to sell kidneys, as Virginia Postrel recounted. Postrel said the law was sponsored by Al Gore and was not controversial at the time.
Postrel’s own account of how she came to the issue is a consent story rather than a market story: she gave a kidney to a friend in 2006, and she described the screening that precedes donation — a workup to confirm the donor is healthy and that the donation will work for the recipient and not harm the donor, plus an interview with a psychologist or social worker. She contrasted that organized process with the urban myth of waking up in a bathtub missing a kidney, noting that a transplant requires two surgical teams, anesthesia teams and a transplant coordinator, and that a kidney cannot simply be carried into a hospital in a cooler.
The exploitation objection, Postrel said, is the more sympathetic of the two objections to compensating donors, and it is the one that put the law on the books. Her answer was to separate consent from vulnerability: she said that if exploitation were the only objection, policies could be designed so that higher-income people were the ones giving kidneys, for instance through tax incentives, and she observed that the people who need kidneys are disproportionately poor and that a third of the waiting list is black. The second objection she called an ick factor — a sense that selling a kidney violates norms of bodily integrity — and she said she could not argue with it, adding that it is not clear why someone should be able to do the same thing for free.
Bob Zadek extended the consent framing past the living donor to the deceased: he said the statute prevents a person from arranging for their organs to be sold upon death and thereby creating an estate for their family, which he called a particular loss for a poorer person. Postrel’s proposed alternative was a system in which transplant centers screen compensated vendors as part of ordinary insurance, not a briefcase of cash in a dark alley.
Self-medication as a corollary of consent
In the November 2020 episode, Dr. Jeff Singer dated the prescription requirement to 1951 and said that before it, the right to self-medicate was widely recognized. He described that right as a corollary of the right to informed consent: a procedure or a medicine cannot be imposed without consent, even when the patient is making a terrible decision, and by the same logic a person who wants to medicate himself or run a test on himself should not need anyone else’s consent Dr. Jeff Singer on Prescription Drug Freedom (2020).
Singer illustrated the older arrangement with the pharmacy: patients often consulted a pharmacist, sometimes carried a doctor’s recommendation, and the pharmacist might suggest something else, but the individual made the final decision. On his account the prescription was a recommendation rather than a permission slip. He also invoked Thomas Jefferson, saying that in colonial times Jefferson told a group that freedom of speech was as sacred as the right to self-medicate, and that the modern position has reversed the two.
Consent language in a First Amendment case
In the July 2020 episode, Jeffrey Barke, a physician and an elected school board member, used the doctor-patient conversation as an analogy for a California law restricting what school board members may say about union membership California’s New Union Gag Order Violates 1st Amendment (2020). He asked the listener to imagine a prescription discussion in which he could describe the benefits of a medication but would be prohibited from describing the side effects and downsides, and said the same restriction would bar him from telling a constituent that there are consequences to joining and participating in a union. He called that an infringement of his free speech.
Barke described the practical effect on consent-adjacent conversation: most of his exchanges with constituents happen outside formal board meetings, at the supermarket or in the community, and he said he now had to be careful about inviting an unfair labor practice lawsuit. He said counsel advised the board not to talk with employees about their rights under Janus, and that the board did not want to spend general fund money on lawyers. Bob Zadek’s framing of the same episode was that the harm runs to listeners as much as speakers: he said voters denied access to one side of an argument are being denied the freedom to listen, and that this is why the issue extends beyond school board members.
Across episodes: no development in the treatment
The three episodes touch informed consent from different directions — as the stipulated condition of a kidney sale, as the parent right from which self-medication follows, and as the model for a doctor’s disclosure that a gag order would truncate — and the excerpts show no development or exchange between the treatments; each guest states the concept in service of a separate argument.
What the sources do not cover
The excerpts do not state a legal definition of informed consent, any case holding on the doctrine, or the standard by which consent is judged valid. They do not say whether Postrel’s or Singer’s positions were ever tested in legislation or litigation, and the Postrel excerpt breaks off mid-sentence with Bob Zadek saying her name. The Barke excerpt ends after a section heading naming Terry Pell and the Center for Individual Rights, with no statement from either.