53 Pages Posted: 6 May 2005
Bioethicists are a worrisome bunch. They worry about the end of sport, the decline of civilization, and, of course, the total annihilation of the human race. This Note has as its broad thesis the claim that bioethics policy analysts should add federalism to their list. More specifically, I propose a framework for integrating federalism dialogue into bioethics policy development. I apply this framework to two policy concerns on which the President's Council on Bioethics has recently published reports: (1) human cloning and (2) the genetic enhancement of athletes.
Why worry about federalism? The distribution of regulatory authority between the state and federal governments influences resulting bioethics policy in three ways. First, both centralized and decentralized policy approaches have procedural advantages that will make the lawmaking process fairer and more efficient. Second, both approaches have substantive advantages that will make the resulting law both more efficient and more just. Finally, both approaches will facilitate a different regulatory structure - either internationalization or interstate cooperation - that we might have reason to prefer.
In the last two years, the President's Council on Bioethics has produced four reports - over 1,200 pages - of policy analysis. Only a few paragraphs in the first report consider federalism. We can do much better. Bioethics policymakers should, and have the constitutional obligation to, engage the enormous volume of literature, both theoretical and empirical, on the advantages and disadvantages of federalism. That is my goal here.
This Note argues that regardless of whether we choose to proscribe or promote therapeutic cloning, Congress should devolve the decision to the states. In contrast, whether we choose to proscribe or regulate the genetic enhancement of athletes, Congress should act preemptively at the federal level.
Keywords: Federalism, stem cell, genetic enhancement, cloning, externalities, social capital
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