The Federalist Turn in Bioethics?

In their article "Federalism and Bioethics," James Fossett and colleagues make three claims: that the American federal system affects the development of bioethics policy; that bioethicists have ignored this fact; and that it's a good thing for states to play a larger role in bioethics policy-making. The first of these claims is a truism; the other two are not only arguable, they are also empirical questions that require more evidence than the authors provide to make their case.

The authors' parting shot is that "awareness of the decentralized and complicated institutional and political machinery that governs bioethical decision-making in this country would make bioethical discussion more immediately relevant to public debates about these issues." It seems self-evident that discussions about public debates on almost any policy issue would be well-served by an awareness of the decentralized and complicated institutional and political machinery of the American federal system. Indeed, it's hardly news that our federal system of government affects much, if not most, public policy-making.

Whether it's true that bioethics has paid little systematic attention to federalism and has "not adequately understood how federalism affects the development of policy and the rights of individuals" is debatable. Providing evidence for this claim requires at least two steps. First, we would have to conduct a systematic review of the relevant literature. Over the years, this journal and others have published articles about state laws and policies involving abortion, surrogacy, fetal tissue and embryo research, organ transplantation, HIV testing and reporting, death and dying, newborn screening, medical privacy, and other issues that presumably fall under the rubric of bioethics. A systematic bibliographic search will likely produce numerous articles that examine state policies on these issues, including analyses of policy variation across the states and discussion about whether uniform national standards are preferable. Deciding what publications to search will raise the second, though logically prior question, What constitutes the bioethics literature?

Even if it's true that bioethics has neglected to examine and analyze state actions, it's an entirely different matter to applaud the fact that "many major bioethical decisions will continue to be made in state capitals rather than in Washington." First, it's not clear what constitutes a "major bioethical decision." Second, while their case studies on embryonic stem cell research and emergency contraception aptly illustrate how to develop an analysis of the effect of federalism on bioethics, the authors use these case studies to make several arguable claims: that "a decentralized system of public decision-making is more responsive to a broader range of public opinion than a centralized system"; that "states are able to take action on complex and controversial issues if the federal government is unable to do so"; and that "a federalist system allows local majorities to form and provides for a better 'fit' between public opinion and public policy than a single national standard would allow."

What's missing from the analysis is the reality of politics at both the national and state levels: that individuals who have millions of dollars to fund advertising campaigns may be able to effect outcomes on contentious issues (as was probably the case in California and Missouri regarding stem cell proposals); that legislative, executive, and judicial policies rarely resolve policy issues (the legislative "success" for stem cell research in Missouri is tenuous); and that state lawmakers may not be able to resolve issues "that are simply too contentious to be resolved by federally elected lawmakers" (to date, only four states explicitly provide funding for embryonic stem cell research).

Moreover, their case studies reflect liberal, progressive policies. What about policies that many believe are not liberal or progressive—state laws that prohibit any surrogacy agreement and surrogacy agreements for same-sex couples, laws that prohibit fetal tissue and embryo research, laws that criminalize drug and alcohol use during pregnancy, and so-called conscience clause laws? Do these laws reflect consensus in the states about the issues, or is it possible that powerful interests have sway over state policy-makers and that voting patterns may not represent public opinion?

Although the authors rightly point out that...