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The Flaw in Formalist Accounts of Circumvention Tourism

Published online by Cambridge University Press:  18 November 2022

Joshua Shaw
Joshua Shaw*
Affiliation:
PENNSYLVANIA STATE COLLEGE (ERIE), BEHREND COLLEGE, ERIE, PA, USA.
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Abstract

Circumvention tourism is a form of medical tourism that occurs when individuals travel abroad to receive treatments that are a prohibited in their home county but permitted in a destination country. This paper explores this question: Should individuals be punished by their home countries for engaging in circumvention tourism? Guido Pennings, Richard Huxtable, and I. Glenn Cohen have all argued for what I call “formalist accounts” of circumvention tourism. That is, they try to show that certain types of circumvention tourism should or should not be punished in principle. Against them, I show that questions about circumvention tourism’s punishability cannot be answered in the abstract. Whether individuals should be punished depends too much on the prima facie morality of the treatments being performed and the prohibitions being circumvented.

Keywords

Medical TourismCircumvention TourismAbortionAssisted Suicideand Punishments
Type
Independent Articles
Information
Journal of Law, Medicine & Ethics , Volume 50 , Issue 3: Transgender Health Equity and the Law , Fall 2022 , pp. 551 - 562
Copyright
© 2022 The Author(s)

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References

Cohen, I. Glenn, “Circumvention Tourism,” Cornell Law Review 97, no. 6 (2012): 1309–1398.Google ScholarPubMed
Cohen, I. Glenn, Patients with Passports: Medical Tourism, Law, and Ethics (New York: Oxford University Press, 2015): at 331–365.Google Scholar
Id. at 318. The paradigmatic examples of circumvention tourism, which I will focus on, are abortion, physician-assisted suicide, and fertility treatments such as in vitro fertilization and transnational commercial surrogacy. Traveling abroad to receive unapproved medical treatments would also count as circumvention tourism on my understanding, such as traveling abroad to buy unapproved generic drugs at a lower cost. Though not exactly illegal, so much as being prelegal, not yet approved, I would still regard these as cases in which travelers try to circumvent their home country’s prohibitions by traveling to a destination county in which the treatments in question are permitted.Google Scholar
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Some examples may help illustrate this point. Teenage deaths due to drunk driving were higher before the USA adopted a national drinking age, when teens could drive cross state lines to buy alcohol in neighboring states with low drinking ages. This harm does not occur as often across international borders — for example, when teens in Michigan drive to Canada to take advantage of Ontario’s lower drinking age. Thus, someone wedded to a utilitarian ethics could view the first as morally worse than the second, and they could support prohibitions and punishments for the first but not the second.Google ScholarGoogle Scholar
Pennings, supra note 8; R. Huxtable, “The Suicide Tourist Trap: Compromise Across Boundaries,” Journal of Bioethical Inquiry 6, no. 3 (2009): 327–336.Google Scholar
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I should note in fairness to Cohen that I am oversimplifying him somewhat. He also gives several “political theoretical” arguments for punishing circumvention tourism in addition to his Murder Island thought experiment. (See Id. at 336-347). I focus on Murder Island because Cohen claims that it shows that it is prima facie reasonable to punish circumvention tourism for abortion and assisted suicide. It is this claim that I wish to interrogate.Google Scholar
Id. at 334-335.Google Scholar
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An anonymous reviewer raises the following concern about this statement. I claim that Murder Island should be read as possibly showing that it is right to punish circumvention tourism when it involves ending lives, hence abortion and assisted suicide, not other forms of tourism, such as fertility tourism. However, it is better read as illustrating the appropriateness of punishing it when it involves a double coincidence of citizenship — that is, when both perpetrator and victim are citizens within the same jurisdiction.Google ScholarGoogle Scholar
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An anonymous reviewer shares a perceptive criticism of my findings in this paragraph. The reviewer proposes that Cohen’s position should be distinguished from Pennings’s and Huxtable’s strict formalism. Unlike Pennings and Huxtable, who argue that circumvention tourism should not be punished in principle, Cohen wishes to show only that there are prima facie reasons for criminalizing some forms of it. To use my analogy with fugitive slave laws, it may have been the case that slave states had a prima facie moral reason for criminalizing aiding runaway slaves. However, it would not follow that they should have in fact punished it, all things considered, since this single reason would have been easily defeated by the great moral evils of slavery. Similarly, Murder Island may only show that there is a prima facie moral reason for criminalizing some types of medical tourism. It would not follow, apropos a formalist account, that they should be punished all things considered.Google ScholarGoogle Scholar
Id. at 333.Google Scholar