[Note: This response was submitted and accepted before the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, and its text reflects that]

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.Reference Shaw¹ 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.

First, terminology. Shaw refers to mine as the best version of a “formalist accounts of circumvention tourism, which hold that individuals should or should not be punished in principle, regardless of the prima facie morality of the treatments and prohibitions in question.” ² I would prefer to call it a “principled” theory of when a country ought to extend its criminal law to its citizens activities abroad — formalism carries a lot of theoretical baggage I do not intend to invoke.

Second, it is a particular kind of principle I am interested in proposing as to extraterritorial application — an if-then kind of principle. Shaw does a generous job of accurately rendering my approach which is to ask “assuming that the domestic prohibition is viewed as normatively well-grounded, under what circumstances should the home country extend its existing criminal prohibition extraterritorially to its citizens who travel abroad to circumvent the prohibition” and to thus bracket the question whether the home country is correct in viewing it as normatively well-grounded.Reference Cohen ³ So far so good. But what I think Shaw gets wrong — in thinking me too ambitious — is that mine is also an internalist theory in a sense. Shaw writes that “A formalist solution would be helpful because it would allow us to at least resolve whether individuals should or should not be punished for flouting domestic prohibitions on abortion through circumvention tourism without waiting for an unlikely resolution to the broader debate over its actual permissibility.” ⁴ Here I think we become a little bit of ships passing in the night. I do not intend an intermediate approach while a country struggles with its views, instead I seek to generate a principled account of what a country that has resolved for itself the moral debate should decide as to extraterritorial application of its laws. This passage captures it well:

Thus my argument takes as resolved in a country (or at least the views of a particular legislator on) a set of domestic prohibitions — abortion, assisted suicide, female genital cutting, reproductive technology use — and asks if that prohibition is viewed by that country (or particular legislator) as valid and normatively well-grounded, should the particular reasons underlying that particular prohibition cause the country to extend its criminal law on the subject extraterritorially. The (complex!) answer I gives is sometimes yes, sometimes no. Not all the underlying reasons in all circumstances should lead to extraterritorial extension and it is useful to sort them, by way of hypothetical and actual cases into a theory of if-thens. ⁶

This leads into the third point: Shaw probes what role the fact that a justification of a law as protecting against serious bodily harm is doing in the argument. At one point he flirts with, but ultimately disclaims, the idea that my argument should be read as suggesting “that we regard crimes involving serious bodily harms as uniquely punishable” when it comes to extraterritorial application; what he calls the “Bodily Harms” as opposed to the “Well-Grounded Prohibitions” interpretation of my argument (he prefers the latter). ⁷ While I do not subscribe to the notion that they are unique, I do in fact think serious bodily harms on vulnerable non-consenting individuals are special easy cases for extraterritorial extension and that other kinds of reasons may be different. This is why I treat the female genital cutting of a minor case and the abortion case as coming out similarly because they involve serious bodily harm, no meaningful consent, and double coincidence of citizenship; ⁸ by contrast, for reproductive technology use, the obligation to extend domestic prohibitions extraterritorially may depend on the kind of reason that justifies the domestic prohibition: child welfare looks more like the prior cases, whereas the obligation to extend extraterritorially is weaker/less assured if the justification is anti-commodification or exploitation of the destination country surrogate. ⁹ Thus, even from the internalist perspective I don’t subscribe to a view that that the mere fact that a home country thinks of a law as well-grounded means it automatically must be extended extraterritorially. For me it depends on the underlying reasons why the home country has that law in the first place.

Finally, one of the reasons he assumes I want to subscribe to the Well-Grounded prohibition, Shaw says, is that if an argument “regard[s] crimes involving serious bodily harms as uniquely punishable, such that our prohibitions on them should be extended extraterritorially, then it is open to the objection that it fails to show that abortion and assisted suicide fall into this category.” ¹⁰

In fact, I intend very much to remain open to the objection! Indeed, it is my point when I note non-bodily harm reasons that a state may offer as justification for criminalizing domestically abortion (women-protective justification) ¹¹ or medical aid in dying (corruption arguments about valuation of life or the integrity of the medical profession) do not follow the same bodily harm analysis and may in some instances not justify extraterritorial extension of the same prohibitions. ¹² For this reasons I am not sure I view his thought experiments as in tension with my claims.

I will end where I began with my deep admiration and appreciation for Shaw’s work and its help in clarifying what questions remain open for both of us.