In the context of medical tourism, circumvention tourism consists of traveling abroad with the intention of participating in a health-related activity that is prohibited in one’s own country but not in the destination country. This practice raises a host of legal and ethical questions that focus on how the traveler should be treated once they have returned home. Joshua ShawReference Shaw¹ deftly shows that the question of whether circumvention tourists should be punished in their home countries is not something that can be answered in principle and without reference to the prima facie morality of the prohibition. This implicates formalist accounts of circumvention tourism developed by PenningsReference Pennings² and HuxtableReference Huxtable³ that argue against punishing travelers who access fertility treatments and medical assistance in dying abroad on the grounds that civic peace and stability require opportunities for individuals to travel internationally to access domestically prohibited medical services.

In his article, Shaw focuses on a detailed critique of Cohen’sReference Cohen⁴ defense of punishing circumvention tourists that harm fellow citizens. It is not clear how well Cohen fits into the formalist camp as he explicitly limits his arguments to circumvention tourism for abortion and medically assisted death. That said, Shaw demonstrates that formalist accounts of circumvention tourism, even when limited to specific types of health-related services, are problematic. Specifically, arguments around the moral permissibility of punishing returning circumvention tourists cannot sidestep questions about whether the underlying prohibition is morally defensible. Thus, it is easier to justify punishing those who go abroad to engage in acts that harm others (as with Cohen’s “murder island” example, arguably with some forms of commercial surrogacy, and as claimed by many abortion opponents) given a wide consensus that harming others is prima facie immoral. By comparison, it will be harder to justify punishment where the health-related travel does not cause harm or the harm is only to oneself.

It is important to note the limited scope of these arguments for and against formalism in response to circumvention tourism. Circumvention tourism includes services that do not harm third parties. Generally, prohibitions for these services are motivated by paternalistic concerns with the efficacy and safety of interventions that have not yet received domestic regulatory approval. A typical example of this form of circumvention tourism is a person traveling abroad to receive a stem cell intervention that is prohibited domestically because it has not received regulatory approval. In this case, it would be prohibited to offer such a service domestically but the grounds for this prohibition are not deeply rooted in the inherent morality of the procedure (putting aside stem cell interventions involving fetal tissue). In practice, travel abroad for health-related services that are not available locally due to lack of regulatory approval likely makes up the large majority of circumvention tourism.Reference Ward⁵

Questions about how to respond to people who travel abroad for health-related services that are prohibited for regulatory reasons do come up and raise ethical considerations. However, these issues are typically tied to fairness in the distribution of resources, including whether travelers should be deprioritized for care domestically if they experience complications from treatment received abroad.Reference Jackson, Snyder, Crooks and Lavergne ⁶ In other cases, harm to others becomes relevant if the traveler is unable to express informed consent to treatment, as with young children and elders with diminished mental capacity.

This is not to say that the kinds of cases discussed by Shaw and others are marginal or unimportant. The elimination of abortion rights in the U.S. via the Dobbs decision makes questions of how circumvention tourists should be treated particularly urgent. People facing new restrictions on abortions in the U.S. will certainly travel abroad to access these services, as with traditional cases of circumvention tourism. As Shaw notes, a broader definition of circumvention tourism to include intranational travel to avoid legal restrictions raises similar questions about how residents returning from outside their local jurisdiction should be treated. In the future, U.S. residents will increasingly travel between states to access abortion services and some states may choose to prohibit such travel or punish residents upon their return. There is some evidence for this response already through anti-abortion legislation that allows civil suits against those who “aid or abet” abortion services, which could include paying for these services or helping those receiving these services to travel out of state.Reference Zernike, Smith and Ploeg ⁷

Shaw’s critique of formalist accounts of circumvention tourism serves as a much-needed prompt for wider discussion of the legal and moral dimensions of this practice. What Shaw demonstrates is that generalizable, formalist accounts of circumvention tourism are problematic in that circumvention tourism raises a host of highly contextual moral issues. These issues include questions about how travelers should be treated by their home jurisdictions, particularly if their treatment arguably harmed others. These patients are often accompanied by caregivers, including in cases of assisted death but also treatment for people with cognitive limitations, people too ill to travel on their own, and people needing financial assistance to travel. The participation of these caregivers and supporters raise their own moral questions that are distinct from the moral status of the primary traveler. The financial dimensions of circumvention tourism are also a reminder that this practice raises important ethical questions about fairness. If circumvention tourism should be tolerated on the grounds of pluralism and permitting dissent as Pennings and Huxtable argue, it is important to recognize that this is a form of dissent that is unavailable to people without the means to travel abroad for care. And, if those returning home require follow up care or serve as vectors for infectious disease, who should pay for these costs? Certainly, Shaw did not seek to answer all of these questions and it is well beyond the scope of his paper to broach them all. What these questions show is that the legal and moral dimensions of circumvention tourism are becoming more relevant. Shaw’s critique of formalism in circumvention tourism demonstrates the importance of considering the wider context of these cases and demonstrates that this is important, fruitful, and under researched territory needing additional reflection.