Federalism for Bioethics?

Abstract

In the wake of the Dobbs decision withdrawing federal constitutional protection for reproductive rights, the U.S. is in the throes of federalist conflicts. Some states are enacting draconian prohibitions of abortion or gender-affirming care while other states are attempting to shield providers and their patients seeking care. Writings in bioethics do not, for the most part, address federalist political structures or the problems they may raise for bioethics, including differences among the states with respect to basic aspects of health and health care. In this article, we explore standard arguments supporting federalism, including that it allows for cultural differences to remain within a structure that provides for the advantages of common security and commerce, that it provides a laboratory for confined experiments, that it is government closer to the people and thus more informed about local needs and preferences, and that it creates layers of government that can constrain one another and thus provide double protection for rights. We contend that these arguments do not justify significant differences among states with respect to recognition of important aspects of well-being; significant injustices among subnational units cannot be justified by federalism. However, as non-ideal theorists we also observe that federalism does present the possibility of some states protecting rights that others do not. Assuming that movement among subnational units is protected, those who are fortunate enough to be able to travel will be able to access rights they cannot access at home. Nonetheless, movement may not be readily available to minors, people without documentation, people with disabilities, people who lack economic resources, or people who have responsibilities that preclude travel. Only rights protection at the federal level will suffice in such cases.

Keywords: Federalism, abortion, Dobbs, gender-affirming care, laboratory of the states, natural experiment, non-ideal theory, rights to movement