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Circumvention Tourism I Cornell Law Review Volume 97 Article 1 Issue 6 September 2012 Circumvention Tourism I. Glenn Cohen Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation I. Glenn Cohen, Circumvention Tourism, 97 Cornell L. Rev. 1309 (2012) Available at: http://scholarship.law.cornell.edu/clr/vol97/iss6/1 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. CIRCUMVENTION TOURISM I. Glenn Cohent Under what circumstances should a citizen be able to avoid the penal- ties set by the citizen's home country's criminal law by going abroad to engage in the same activity where it is not criminally prohibited? Should we view the ability to engage in prohibited activities by traveling outside of the nation state as a way of accommodating cultural or political differences within our polity? These are general questions regarding the power and theory of extra- territorial application of domestic criminal law. In this Article, I examine the issues through a close exploration of one setting that urgently presents them: medical tourism. Medical tourism is a term used to describe the travel of patients who are citizens and residents of one country, the "home country, "to anothercountry, the "destinationcountry, "for medical treatment. This Article is the first to comprehensively examine a subcategory of medical tourism that I call "cir- cumvention tourism," which involves patients who travel abroadfor services that are legal in the patient's destination country but illegal in the patient's home country-that is, travel to circumvent domestic prohibitions on acces- sing certain medical services. The four examples of this phenomenon that I dwell on are circumvention medical tourism for female genital cutting (FGC), abortion, reproductive technology usage, and assisted suicide. I will briefly discuss the "can" question: assuming that a domestic pro- hibition on access to one of these services is lawful, as a matter of interna- t Assistant Professor, Harvard Law School. Co-Director, Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics. J.D., Harvard Law School. [email protected]. I thank Bill Alford, Susan Appleton, Ronen Avraham, Hans Baade Betsy Bartholet, Miriam Baer, Gabriella Blum, Rachel Brewster, Michael Cahill, Anthony Colangelo, Nathan Cortez, Grainne De Burca, John Deigh, Einer Elhauge, Nita Farahany, Kim Ferzan, Chad Flanders, Dov Fox, Charles Fried, Jesse Fried, Ann Freedman, John Goldberg, Jim Greiner, Janet Halley, Adil Haque, Kyron Huigens, Adriaan Lanni, Dan Markel, Martha Minow, Kim Mutcherson, Gerald Neuman, Vijay Padmanabhan,John Robertson, Ben Roin, Rand Rosenblatt, Bill Rubenstein, Ben Sachs, Jed Shugerman, Jo- seph Singer, Charles Silver, Aaron Simowitz, Rayman Solomon, Robert Sitkoff, Carol Steiker, Matthew Stephenson, Allan Stein, Jeannie Suk, Mark Wu, Detlev Vagts, Carlos Vas- quez, Alec Walen, and Jonathan Zittrain for comments on earlier drafts. I also thank par- ticipants at the Harvard Law School Petrie-Flom Center Health Law Workshop on April 18, 2011, the Harvard Law School Petrie-Flom Center Globalization of Health Care Confer- ence on May 21, 2011, the ASLME Health Law Professors Conference on June 11, 2011, the NYU/Brooklyn Law School Criminal Law Theory Workshop on September 15, 2011, the University of Texas at Austin Faculty Workshop on October 28, 2011, the Rutgers Law School Faculty Workshop on February 28, 2012, and the Tel Aviv University Law School Faculty Workshop on June 6, 2012, for comments. Mollie Bracewell, Joseph Brothers, Cormac Early, Mischa Feldstein, Katherine Hicks, Russell Kornblith, Katherine Kraschel, Rebecca Livengood, Keely O'Malley, Erik Graham-Smith, Lisa Sullivan, and Desta Tedros provided excellent research assistance. 1309 1310 CORNELL LAW REVIEW [Vol. 97:1309 tional law, is the home country forbidden, permitted, or mandated to extend its existing criminal prohibition extraterritoriallyto home country citizens who travel abroad to circumvent the home country's prohibition? Most of the Article, though, is devoted to the "ought" question: assum- ing that the domestic prohibition is viewed as normatively well-grounded, under what circumstances should the home country extend its existing crimi- nal prohibition extraterritoriallyto its citizens who travel abroad to circum- vent the prohibition? I show that, contrary to much of current practice, in most instances, home countries should seek to extend extraterritoriallytheir criminal prohibitions on FGC, abortion, assisted suicide, and, to a lesser extent, reproductive technology use to their citizens who travel abroad to cir- cumvent the prohibition. I also discuss the ways in which my analysis of these prohibitions can serve as scaffoldingfor a more general theory of cir- cumvention tourism. INTRODUCTION ................................................. 1311 I. A FRAMEWORK AND FOUR CASE STUDIES .................. 1314 A. An Intellectual Framework .......................... 1314 B. Four Case Studies .................................. 1317 1. Female Genital Cutting of Minors .................. 1317 2. A bortion ......................................... 1320 3. Reproductive Technology Use ....................... 1323 4. Assisted Suicide .................................. 1326 II. THE DOCTRINAL QUESTION: HOME COUNTRIES' POWER TO CRIMINALIZE CIRCUMVENTION MEDICAL TOURISM UNDER INTERNATIONAL LAW .................................... 1328 A. Bases for Prescriptive Jurisdiction ................... 1329 B. Limitations on Jurisdiction to Prescribe ............. 1331 III. THE NORMATIVE QUESTION: WHEN SHOULD HOME COUNTRIES CRIMINALIZE CIRCUMVENTION TOURISM BY THEIR CITIZENS? ........................................ 1336 A. Welcome to Murder Island ......................... 1339 1. The Prima Facie Case for ExtraterritorialApplication. 1339 2. A Political Theoretical Account .................... 1341 3. Some Political Theoretical Objections Considered with ParticularAttention to Inter Versus Intranational Contexts ......................................... 1346 B. When Should We Resist Extraterritorial Criminalization Even as to Murder? ................. 1349 1. Retaliation....................................... 1349 2. Safety Valve ...................................... 1350 3. Core Versus PeripheralDivergence .................. 1353 C. Female Genital Cutting of Minors .................. 1356 1. M urder Is Special ................................ 1356 2. Cultural Context and Consent ..................... 1358 3. Procuring Versus Performing....................... 1359 2012] CIRCUMVENTION TOURISM 1311 4. Accommodation of Religious and Cultural Beliefs ....1360 D . Abortion ........................................... 1363 1. Justifications Other Than Harm to the Fetus ........ 1364 2. Victim Citizenship ................................ 1365 3. Contestability of the Norm, Exit, and Exit-Light ..... 1368 4. Timing .......................................... 1372 E. Reproductive Technology Use ...................... 1373 1. Child Welfare Concerns ........................... 1374 2. Anticommodificationist Corruption and Other Attitude-Modification Concerns .................... 1376 3. Exploitation...................................... 1381 F. Assisted Suicide ..................................... 1386 1. Corruption of the Profession, Slippery Slopes, and the Devaluation of Life ............................... 1386 2. Patient Protection, Paternalism, and Consent ........ 1388 IV. BEYOND MEDICAL TOURISM: SCAFFOLDING FOR A MORE GENERAL THEORY OF CIRCUMVENTION TOURISM .......... 1390 CONCLUSION .....................................................1397 INTRODUCTION Under what circumstances should a citizen be able to avoid the penalties set by his or her home country by going abroad to engage in a prohibited activity in a place where it is legal? Should we view the ability to engage in prohibited activities by traveling outside of the nation-state as a way of accommodating cultural or political differ- ences within our polity? These are general questions regarding the power and theory of extraterritorial application of domestic criminal law. In this Article, I examine these issues through a close exploration of one setting that urgently presents them: medical tourism. Medical tourism-the travel of patients from the "home country" to the "destination country" for medical treatment-is a rapidly growing multibillion-dollar industry involving thousands of patients from the United States alone.1 While the existing literature (my own work included) focuses on patients who travel to "price-shop" for services legal in both the home and des- tination country either on their own initiative or because their insurer or government induces them to,2 a different facet of the industry also I See, e.g.,I. Glenn Cohen, Protecting Patients with Passports: Medical Tourism and the Patient-ProtectiveArgument, 95 IowA L. REV. 1467, 1471-73 (2010) [hereinafter Cohen, Pro- tecting Patients] (describing and defining medical tourism). 2 See, e.g., id. (noting that the "numbers relating to medical tourism from this new century have been steadily growing" and that, "[flor U.S. patients, medical tourism promises significant cost savings"); I. Glenn Cohen, Medical
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