Federalism for Bioethics?

Forthcoming, Cambridge Quarterly of Healthcare Ethics

University of Utah College of Law Research Paper No. 565

16 Pages Posted: 17 Aug 2023 Last revised: 23 Aug 2023

See all articles by Leslie P. Francis

Leslie P. Francis

University of Utah - S.J. Quinney College of Law

John G. Francis

University of Utah - Political Science Department

Date Written: August 14, 2023

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

Suggested Citation

Francis, Leslie P. and Francis, John G., Federalism for Bioethics? (August 14, 2023). Forthcoming, Cambridge Quarterly of Healthcare Ethics, University of Utah College of Law Research Paper No. 565, Available at SSRN: https://ssrn.com/abstract=4540992 or http://dx.doi.org/10.2139/ssrn.4540992

Leslie P. Francis (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

John G. Francis

University of Utah - Political Science Department ( email )

260 S. Central Campus Drive
Room 252
Salt Lake City, UT 84112
United States
801 585 3460 (Phone)
801 585 6492 (Fax)

HOME PAGE: http://www.poli-sci.utah.edu

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