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A Response to The Flaw in Formalist Accounts of Circumvention Tourism

Published online by Cambridge University Press:  18 November 2022

I. Glenn Cohen*


It is a huge pleasure to engage with Prof. Shaw’s careful and close reading of my article. Though almost a decade old, many of the issues are becoming only more relevant as it seems that Roe v Wade will be overruled in the U.S. and travel for abortion will become a sad reality.1 I appreciate how deeply Prof. Shaw interacts with my article and am full of praise for his work, but given the small space allocated here I only focus on our few places of disagreement.

Independent Articles: Commentary
© 2022 The Author(s)

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While he would group together the international and intra-national, Shaw, J., “The Flaw in Formalist Accounts of Circumvention Tourism,” Journal of Law, Medicine & Ethics 50, no. 3 (2022): 551562, for the reasons I have discussed I think the two cases are distinct from a political philosophy perspective, including the thickness of the state versus national community in communitarian thinking. I.G. Cohen, Patients with Passports: Medical Tourism, Law, and Ethics (New York: Oxford University Press, 2015): at 342.Google ScholarPubMed
Shaw, supra note 1.Google Scholar
Cohen, I. G., “Circumvention Tourism,” Cornell Law Review 97, no. 6 (2012): 13091398, at 1310.Google ScholarPubMed
Shaw, supra note 1.Google Scholar
Cohen, supra note 2, at 1338.Google Scholar
Importantly, as I think he recognizes, resolving the question I put does not resolve when international law should allow a country to extend its law extraterritorial law in this way. That is the externalist question not the internalist.Google Scholar
Shaw, supra note 1.Google Scholar
Cohen, supra note 2, at 1356-1373.Google Scholar
Id. at 1373-1384.Google Scholar
Shaw, supra note 1.Google Scholar
Cohen, supra note 2, at 1364.Google Scholar
And to emphasize once more when I say they do not “justify” — I mean as always on the internalist picture, from the perspective of the home country that has the prohibition in place, or if you prefer the hypothetical legislator who has voted for the prohibition domestically and asks herself should I extend it extraterritorially.Google Scholar