2. Circumvention Tourism

My topic is a specific type of medical tourism, what I. Glenn Cohen calls circumvention tourism. Circumvention tourism occurs when individuals travel to other countries “for the express purpose of doing something illegal in the home country but not the destination country.” ³ Circumvention tourism differs in this way from, for example, transplant tourism, where a treatment, selling organs, is illegal in both the home and the destination country but so poorly policed in the destination country that a black market is accessible to non-residents. It also differs from medical tourism in which treatments are legal in both countries, such as when Canadians travel to the United States for MRI scans, where wait times are shorter, or when US citizens travel to clinics in South America for cosmetic surgeries, where these procedures are less inexpensive.

A key dilemma raised by circumvention tourism is whether home countries should punish citizens for engaging in it. Here, much of the discussion has focused on cases involving abortion and doctor-assisted suicide. For example, the 1992 “X case” in Ireland, Attorney General v. X, involved a rape victim who tried to travel to England to obtain an abortion, which was prohibited at the time in Ireland. ⁴ When the victim’s family sought to arrange for DNA evidence to be collected, and shared with police investigating the case, the Irish Attorney General requested an injunction to prevent travel to England. The victim was eventually permitted to travel but the case led to a flurry of discussion over whether the government should enforce its punishments for abortion.

For assisted suicide, an example is the 2008 Daniel James case, in which an English rugby player, Daniel James, who was left paralyzed after an injury, travelled to Switzerland, which allows organizations to offer assisted suicide services to nonresidents.Reference Mullock ⁵ James’s parents initially discouraged him from ending his life but relented after a third failed suicide attempt, and, with the assistance of an unnamed family friend, helped him travel to Switzerland. After his death, when they returned, the Director of Public Prosecutions in the United Kingdom considered prosecuting them for assisting in James’s suicide. Here too, the case led to a flurry of discussion: If assisted suicide is illegal in an individual’s home country, should this country prosecute residents who help other citizens travel to countries, such as Switzerland, that allow it to nonresidents?

My aim is to challenge formalist answers to these questions. Before I discuss them, though, let me clarify a few points. First, I should note that I am not concerned with whether countries can punish citizens for circumvention tourism — whether it is in their prescriptive jurisdiction. I take it to be fairly uncontroversial that they have this authority. ⁶ Instead, the question at issue is a normative one: Not can but should countries exert this authority?

Also, I would propose that the normativity at stake in this question is ethical or moral normativity, not, for lack of a better phrase, formal legal consistency. By “formal legal consistency” I have in mind whether a penalty ought to be given inasmuch as it is consistent with and/or entailed by certain rules or policies. To give an example, suppose I warn students in a syllabus that my policy is to give zeros to all students who do not submit an assignment by a certain deadline. Suppose a student misses this deadline because of a medical emergency. That I can give a zero is not controversial. That I ought to give it vis-à-vis the policy stipulated in the syllabus is also clear. However, there may be room for debate over whether, ethically speaking, I should suspend or lighten the penalty in this case.

The “ought” at stake in circumvention tourism, it seems to me, should be understood as this kind of ethical ought, not whether a penalty is formally consistent with a country’s laws. Suppose for the sake of argument that the United Kingdom’s laws were unambiguous in identifying a certain punishment for aiding other citizens in soliciting assisted suicide by helping them travel to Switzerland. There would then be no question about its formal consistency. Yet it strikes me as plausible to imagine that some elements of the normative issue at stake in the Daniel James case would linger on: Should this punishment be imposed on parents who already grieving the tragic loss of a son?

One more clarification. I have defined circumvention tourism as involving cases where individuals travel abroad to receive treatments that are prohibited in their home countries but permitted in their destination countries. This definition may be too restrictive. Guido Pennings has noted that circumvention tourism need not entail crossing national borders. It can occur intra-nationally, such as when, prior to Roe v Wade, and most likely now in future as well, following Dobbs v Jackson Women’s Health Organization, citizens in the United States travelled from states that prohibited abortion to those that permitted it, which led to similar debates over whether states should criminalize abortions sought in other states..Reference Kreimer ⁷ Thus, Pennings defines circumvention tourism with “the traveling by candidate service recipients from one institution, jurisdiction or country where the treatment is not available to another institution, jurisdiction, or country where they can obtain the kind of [treatment] they desire.”Reference Pennings ⁸

I prefer Penning’s definition. However, I will continue to discuss circumvention tourism as though it were a form of international medical tourism. I believe that my paper’s arguments hold for both international and intranational tourism. From an ethical perspective, the core dilemma does not change substantially based on whether it occurs across nations, provinces, territories, or some other social/geographic grouping: Should individuals who are subject to one group’s laws be punished for violating them when their violations occur “outside” of these groups’ boundaries and “within” those of a group that permits the prohibited behavior? However, intranational circumvention tourism may have ethical nuances that slightly distinguish it from international tourism, and vice versa, and I worry that trying to address them will distract me from my main task, which is to challenge formalist accounts. ⁹ For my purposes, therefore, I will discuss circumvention tourism as if it exclusively involved international travel, but with the caveat that I focus on this form because I take it to be emblematic of the core ethical dilemma at stake in both types, and with the expectation that my arguments against formalist accounts can be extended to intranational circumvention tourism.

3. Formalist Accounts

A formalist account of circumvention tourism holds that individuals should or should not be punished for engaging in circumvention tourism in principle, regardless of the actual morality of the treatments being performed and the prohibitions being circumvented, their actual moral “content.” I. Glenn Cohen gives, in my estimation, one of the strongest arguments for a formalist account. However, it will be helpful to summarize a pair of competing views, ones he rejects but that I would also characterize as formalist accounts.

Guido Pennings and Richard Huxtable have argued that circumvention tourism should not be punished. ¹⁰ They note that modern democratic societies are invariably composed of groups that uphold competing conceptions of the good. It is also inevitable that one conception, the majority view, will end up besting others: “If the democratic process functions normally, the view on the good life of the majority will prevail at the expense of the minority view.” ¹¹ This status quo leads to a threat of what Pennings calls “moral warfare,” a “risk of conflicts which threaten peace and cooperation.” ¹² A minority population whose deep moral convictions are stifled may come to regard themselves as dutybound to disobey the laws — perhaps to alter them through violent, non-democratic means. A pluralistic society has two options for reducing this risk. It can permit a measure of “internal tolerance” by only partially or selectively enforcing laws that suppress a minority view. Another option is to exhibit “external tolerance” by allowing citizens with this view to enact it elsewhere, in countries that permit it.

Pennings and Huxtable argue that the second option is preferable to the first. Both require countries to turn a blind eye toward citizens’ transgressions. However, internal tolerance sends mixed signals — simultaneously prohibiting behaviors yet permitting citizens to perform them anyway. By contrast, allowing dissenting citizens to enact their beliefs by going abroad promotes tolerance while maintaining “a clear message about what is permitted in the country.” ¹³ Similarly, Huxtable writes that circumvention tourism should be viewed as “a compromise [that] allows the home state to afford its citizens a measure of freedom, whilst also cleaving to a bigger bundle of overlapping and sometimes contradictory values.” ¹⁴ Put another way, circumvention tourism can be understood as a kind of safety valve that lets pluralistic democratic societies vent intra-communal pressures, ones that, if left unreleased, could threaten citizens’ willingness to cooperate with one another in working toward peaceful compromises through the democratic process.

Pennings and Huxtable defend what I consider to be formalist accounts. Pennings’s argument focuses on reproductive tourism but does not hinge on any substantive claims about the actual morality of in vitro fertilization (IVF), sex selection, or transnational surrogacy. Huxtable focuses on suicide tourism, yet his argument does not rely on any substantive claims about the actual morality of physician-assisted suicide. Both argue that circumvention tourism should not be punished in principle because it promotes external tolerance.

Cohen frames his position as a reply to Pennings and Huxtable, but one that, I note, preserves their formalism. He asks readers to focus on cases where a domestic prohibition on abortion or assisted suicide is accepted as “valid and lawful” by a citizen’s home community. Here, Cohen emphasizes that he is asking readers to “purposefully bracket” their beliefs about the actual morality of these treatments. ¹⁵ Thus, he observes in a footnote that he himself has defended abortion rights in several articles. Even so, suppose for the sake of argument that a country has determined that a ban on abortion is “normatively well-grounded.” Cohen claims that it “should criminalize abortions by [its] citizens abroad, even where it would be legal in the destination country.” ¹⁶

Why should this be the case? To prove his point, Cohen invites readers to consider this thought experiment: ¹⁷

Cohen asks this question: Should the United States punish Ben even though murder is permitted on Murder Island? Most if not all readers will share the intuition that Ben should be punished. “I think we would all conclude,” Cohen writes, “that it would not be wrong for the United States to seek to extend its criminal laws extraterritorially to cover Ben’s act in this instance.” Cohen takes this thought experiment to establish, in turn, “a strong prima facie case” for this principle:

It follows that countries should punish circumvention tourism for abortion since it would fall under this principle. That is, if a country accepts, as lawful and valid, prohibitions on abortion on the grounds that it causes serious bodily harms, ones from which victims should be protected, then, given that the perpetrator and the victim are both citizens, the state should extend its prohibitions extraterritorially even when abortions are permitted under the law of a destination country. Cohen acknowledges that the case for punishing circumvention tourism for assisted suicide is possibly “a little less strong.” Nonetheless, he suggests that the same general point applies.

I read Cohen as also arguing for a formalist account. Here, it is worth reiterating that his opening move is to “purposefully bracket” questions about the actual morality of abortion and assisted suicide. Instead, he tries to show that circumvention tourism should be punished when a country regards its prohibitions as “legally and normatively well-grounded.” He describes the value of this approach thusly:

Cohen’s proposal, as I read it, is that a formalist approach is advantageous because it sidesteps certain intractable debates in ethics. Voluminous quantities of ink have been spilled over abortion. 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. Two Ambiguities

I turn now to presenting my critique. My aim in this section will be to identify ambiguities in Cohen’s Murder Island thought experiment. I distinguish two interpretations — two ways it may be thought to provide a prima facie case for punishing circumvention tourism for abortion and assisted suicide. I also argue that one, Well-Grounded Prohibitions, has advantages over the other, Bodily Harms. My aim in section 5 will be to challenge Well-Grounded Prohibitions.

Here is the first ambiguity. Recall that Cohen asks us to suspend our beliefs about the actual morality of abortion and assisted suicide and to assume that a county’s prohibitions are lawful and valid. A few examples of this injunction:

Here is my question: What does it mean for a country’s prohibitions to be “legally and normatively well-grounded,” “valid and lawful,” or “lawful and valid?”

These phrases cannot mean, I take it, that the prohibitions in question are in fact morally justified, for Cohen has asked us to bracket this issue. Also, I noted in section 3 that the “payoff” of his approach is supposed to be that it can deliver useful conclusions about circumvention tourism’s punishability without waiting on resolutions to broader, irresolvable debates in ethics over abortion and assisted suicide. But if assuming a country’s prohibitions are “lawful and valid” just means “assume abortion and assisted suicide are in fact highly unethical and should not be morally or legally permissible,” then his argument cannot claim this advantage since its success would hinge on establishing these claims — spilling more ink. Also, it would be open to charges of question-begging — not so much proving that circumvention tourism for abortion and assisted suicide should be punished as presupposing this conclusion. Finally, “lawful and valid” cannot mean simply that a country has certain prohibitions on its books, that its laws prohibit abortion or assisted suicide, for this is explicit in cases involving circumvention tourism and would not require an exhortation to assume it.

Maybe Cohen has something like the following in mind. Perhaps he can be read as inviting us to suppose that a country’s prohibitions express its consensus moral outlook. Here, though, the claim cannot be that everyone in this community shares this view, for, if so, Pennings and Huxtable could challenge it as an artifice, for no modern democracy can boast one universally accepted conception of the good, whereas their arguments reflect crises these societies cannot avoid given their pluralism. Instead, I take Cohen to be asking us to imagine that a country’s prohibitions, while not universally accepted, can be said nonetheless to represent something like the will of its people. Here, I find myself tempted to use Rawlsian language and liken his request to “purposefully bracket” our beliefs as akin to stepping behind a veil of ignorance — i.e., temporarily forget your actual beliefs about abortion or assisted suicide and imagine you belong to a community that regards its prohibitions as normatively well-grounded. Given this starting point, Murder Island shows that one should find it inconsistent not to endorse punishing circumvention tourism for these treatments.

The second ambiguity I wish to discuss involves the link between Murder Island and the principle it is alleged to support. To reiterate, Cohen claims that Murder Island shows there is “a strong prima facie case” for this principle:

I will argue that there is an ambiguity in how Murder Island may be thought to support this principle. First, a quibble. I would suggest that, as written, this conditional slightly misrepresents Cohen’s view. Specifically, I take the phrase, if the home country criminalizes territorially… an act, to mean not just that the country has criminalized an act but that its people regard this prohibition as normatively well-grounded. That is, I take it to be fundamental to Cohen’s argument that it only applies in cases where a country views it domestic prohibitions as lawful and valid. Understood this way, his principle’s antecedent can be read as specifying three key conditions on when circumvention tourism should be punished. At the risk of oversimplifying, I would rephrase it this way:

Here is the suggestion I wish to explore: It is unclear whether Murder Island justifies #1 or #2 of this conditional.

Murder Island could be thought to provide a strong prima facie case for #1 in the following way. The thought experiment invites us to imagine a paradigmatic instance of a crime whose prohibitions we are likely to accept as normatively well-grounded. Surely, we can all agree that murder is one of the worst crimes and should be punished. The thought experiment shows that, given this belief, most of us would judge it wrong or inconsistent not to punish this crime when it happens between citizens extraterritorially even if it were permitted in a destination country. From here, Cohen can point out that we are assuming for the sake of argument that a country’s prohibitions on abortion or assisted suicide are accepted by its people as normatively well-grounded. Given this belief, would they not find it just as wrong or just as inconsistent not to punish circumvention tourism for abortion or assisted suicide?

Let me this the Well-Grounded Prohibitions interpretation. Well-Grounded Prohibitions reads Murder Island as providing us with an instructive example of a normatively well-grounded prohibition, one we are likely to accept, which, in turn, helps us recognize the appropriateness of punishing extraterritorial violations of it. From here, the argument notes that countries that have banned abortion or assisted suicide are likely to view their prohibitions as being similarly well-grounded, thus it would be just as inconsistent for them not to punish circumvention tourism for these treatments.

There are advantages to this interpretation. One is that it secures the benefits I identified in section 3. Again, an alleged “payoff” of Cohen’s approach was that it could deliver useful conclusions about the punishability of circumvention tourism for abortion and assisted suicide without spilling more ink over these seemingly unresolvable moral dilemmas. Murder Island can be read as fulfilling this pledge because it shows that most of us would regard it as correct to punish a citizen for committing a crime against another citizen extraterritorially if we genuinely believe our prohibitions on this crime are normatively well-grounded. Here, again, I find myself tempted to use Rawlsian language; stepping behind a veil of ignorance, and supposing ourselves to be members of a community that regards its bans on abortion or assisted suicide to be normatively well-grounded, would we not find it just as inconsistent not to punish circumvention tourism for these treatments? Thus, even if one believes that a country’s policies are in fact wrongheaded, one can still recognize that it is reasonable for it to enforce them on its citizens even when they travel abroad.

However, there are problems with this interpretation. If Murder Island is interpreted as providing evidence for #1, then #2 becomes somewhat immaterial. For Murder Island would show that there is a general inconsistency between accepting a prohibition as normatively well-grounded yet turning a blind eye toward citizens’ extraterritorial transgressions, regardless of whether they happen to involve serious bodily harms. Murder Island might focus on a crime involving such harms because we do, as a matter of fact, regard our prohibitions on them to be well-grounded. However, its implications would not be confined to these crimes.

I suspect, however, that Cohen does not want us to reach this conclusion. He clearly distinguishes his argument for punishing circumvention tourism for abortion and assisted suicide, which relies on Murder Island, from other types of circumvention tourism. For example, he does not regard it as extending to fertility tourism — cases where individuals circumvent domestic prohibitions on IVF, surrogacy, and sex selection. ²⁵ He also explicitly distinguishes his argument for punishing circumvention tourism for abortion and assisted suicide from a “more general framework” he has developed for “determining when a country should extend extraterritorially its criminalization of a domestic medical procedure.” ²⁶ These caveats suggest that Cohen views Murder Island as mainly establishing that it is appropriate to punish circumvention tourism when it involves ending lives, hence abortion and assisted suicide, not other types of circumvention tourism. ²⁷

Perhaps, then, Murder Island should be read as supporting #2. Here, it may be thought to support #2 by inviting us to imagine a paradigmatic example of a crime we prohibit in order to protect victims from serious bodily harms. Our reactions show that we accept it as right to punish such crimes, when the perpetrators and victims are citizens, even if they occur in countries that allow them.

Let me call this the Bodily Harms interpretation. Bodily Harms interprets Murder Island as illustrating the exceptional status of crimes involving serious bodily harms — our heightened responsibility to punish them. This interpretation has at least one advantage over Well-Grounded Prohibitions: it is more consistent with some textual evidence. Again, Cohen explicitly restricts Murder Island’s implications to circumvention tourism for the purpose of ending lives. If it is mainly intended to show that we ought not turn a blind eye to extraterritorial violations of laws that involve serious bodily harms, then it would explain why it would support punishing circumvention tourism for abortion and assisted suicide, which, from the perspective of those who support bans on them, involve these considerations, but not other types of circumvention tourism.

However, Bodily Harms is vulnerable to a counterargument. Suppose a critic accepts the gist of this interpretation: Murder Island does show that crimes involving serious bodily harms are so egregious that prohibitions should be extended extraterritorially. Nevertheless, it is inaccurate, a critic could argue, to treat abortion or assisted suicide as instances of these crimes. Cohen anticipates this objection:

I do not think that Cohen should be read as passing the buck in this passage, simply refusing to answer an objection. Nor do I read him as evading it via stipulation — insisting that he is supposing, for argument’s sake, that abortion is morally equal to murder because he has stipulated that Ireland’s prohibitions were “lawful and valid.” Instead, I take him to be defending himself by invoking something like Well-Grounded Prohibitions. That is, I take him to be proposing that his argument shows that if a country views its prohibitions as normatively well-grounded, then it should seek to extend them extraterritorially. From here, he can point out that prohibitions on abortion were accepted as well-grounded in Ireland at the time of the X case, thus it would have been right for Ireland impose them on citizens who traveled abroad for abortions even if an objector is right to question whether abortion should be likened to murder in the first place.

Put another way, Cohen can defend Bodily Harms by claiming, based on Well-Grounded Prohibitions, that he does not need to show that abortion and assisted suicide do involve crimes in which victims suffer serious bodily harms, only that a country regards them as such. By itself, though, Bodily Harms fails to show that circumvention tourism for abortion and assisted suicide should be punished. It shows only that punishing them would be appropriate if they could be shown to involve crimes in which victims suffer seriously bodily harms — a claim pro-choice critics will strenuously deny. The problem is that Well-Grounded Prohibitions is not entirely consistent with Bodily Harms. I say “not entirely consistent” because there is no strict contradiction between them. However, Well-Grounded Prohibitions does render Bodily Harms somewhat immaterial; it also undercuts its purpose insofar as it entails that it can be appropriate to punish circumvention tourism in a much greater range of cases than those involving serious bodily harms.

Here, I suppose, Cohen could argue that Murder Island supports both #1 and #2. That is, it provides an instructive example of a case in which we accept as true the entire conjunction in the following conditional statement’s antecedent:

Murder Island is case in which 1-3 are all true, and in which 4 can be recognized as following from them. However, the problem with this suggestion is, again, that the argument for #1 is at loggerheads with the argument for #2. If the main point of Murder Island is to help us recognize that we should find it consistent to punish citizens for committing crimes extraterritorially when we believe wholeheartedly that our prohibitions on them are warranted, then its implications cannot be confined to crimes involving bodily harms. Conversely, if its main point is to help us recognize that we regard 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. Cohen can address this criticism, but to do so requires that we interpret Murder Island as supporting #1, which, in turn, undercuts #2.

Here I would suggest is that Murder Island is better understood along the lines of Well-Grounded Prohibitions. Bodily Harms is problematic in that it cannot prove that circumvention tourism for abortion or assisted suicide should be punished — only that it would be right to do so if they could be shown to be morally equivalent to homicide. By contrast, Well-Grounded Prohibitions supports the conclusion that a country should punish circumvention tourism for these treatments if it regards its prohibitions on them as normatively well-grounded, regardless of their actual morality. Well-Grounded Prohibitions simply implies that other types of circumvention tourism may be punishable too. For now, therefore, I want to assume that Murder Island should be read along the lines of the Well-Grounded Prohibitions. My aim in the next section will be to raise doubts about whether the intuitions at play Murder Island really do support this interpretation.

5. Two Other Cases

I argued in the last section that there is an ambiguity in Cohen’s Murder Island thought experiment. It can be interpreted two ways. I also argued that one, Well-Grounded Prohibitions, is preferable to the other, Bodily Harms. My aim in this section will be to raise doubts about Well-Grounded Prohibitions.

I begin with an alternative thought experiment:

I suspect that readers’ intuitions will be more divided about this case than Murder Island. Many may find it unreasonable to punish the siblings — that the phenomenon of older teens taking advantage of other countries’ lower drinking ages while traveling abroad is not uncommon and fairly innocuous. At the same time, I would submit that the United States’ current drinking age laws have some claim to be normatively well-grounded. No doubt, there are critics who think they should be lowered, or that they incentivize young people to drink irresponsibly, binge-drinking behind closed doors. Nonetheless, there does seem to be a broad consensus that the national drinking age should not be lowered, that current prohibitions are warranted, and that it is right to punish adults who violate them by supplying alcohol to minors.

I offer this case to raise some initial tentative doubts about Well-Grounded Prohibitions. Well-Grounded Prohibitions takes Murder Island to show that we generally support extending domestic prohibitions extraterritorially when we accept them as normatively well-grounded, even when the conduct is permitted under the laws of a destination country. However, this claim does not seem to be borne out by the above case — one in which the prohibitions being violated are viewed as well-grounded domestically but perhaps not so momentous, ethically speaking, that extraterritorial transgression should be punished.

Now imagine a case taking place in a pre-Civil War slave state in the USA, one in which the punishments for aiding fugitive slaves included fines and imprisonment. Suppose a resident is found to be helping runaway slaves but their assistance occurs outside of the state’s borders, in a neighboring non-slave state whose laws permit individuals to help runaways by, for example, explicitly prohibiting state officials from enforcing other states’ prohibitions. Should the resident be punished?

Many will agree, I hope, that the resident should not be punished. For it is one thing to say that certain punishments can be rationalized, in hindsight, given the beliefs of a time period or the norms that governed life in a community. Perhaps it would be in some sense fathomable that conductors in the Underground Railroad were punished when they were found to be aiding runaway slaves. However, it is a very different thing to say that these punishments were in fact morally justified because the states that imposed them viewed them as well-grounded. What should be said instead, I think, is that slavery is grossly immoral, that conductors acted rightly in helping runaways, and that the punishments inflicted on them were immoral, regardless of whether slave states viewed them as justified.

These cases pose problems for Well-Grounded Prohibitions. Well-Grounded Prohibitions interprets Murder Island as showing that it is generally right for a country to extend its prohibitions extraterritorially when it regards them as normatively well-grounded. However, the first case involves a scenario where a country regards its prohibitions (on underage drinking) as well-grounded but where our intuitions are apt to be divided on whether extraterritorial transgressions should be punished. The second involves a scenario where a state regards its prohibitions (on aiding fugitive slaves) as well-grounded but where our intuitions are apt to undivided (I hope!) on the wrongfulness of punishing extraterritorial transgressions. These cases suggest that our intuitions are a good deal more ambivalent than Murder Island might seem to imply about the rightness of punishing citizens for extraterritorial transgressions of prohibitions a country accepts as normatively well-grounded.

Here, I would propose a different interpretation. It is this: Our intuitions about whether a country should punish its citizens for extraterritorial transgressions of its laws hinge on our assessments about the actual morality of these transgressions. When the conduct in question is clearly deeply unethical (Murder Island), we feel confident in insisting that a country’s prohibitions should not end at its borders. When we are ambivalent (underage drinking), we are less confident about this conclusion — more apt to endorse a policy of turning a blind eye. Finally, when the conduct is morally praiseworthy (aiding runaway slaves), a circumvention of grossly immoral laws, we are likely to outright reject the idea that a country should punish its citizens for extraterritorial transgressions.

Put another way, Murder Island draws its plausibility from intuitions that undercut the formalism it is supposed to support. Cohen is not wrong: Our intuitions do confirm that Ben should be punished for murdering John even though it happens on Murder Island. However, this is due to murder’s actual immorality. Here, Well-Grounded Prohibitions engages in a bit of sleight of hand, suggesting instead that it is our regarding prohibitions on murder as well-grounded that warrants extending them extraterritorially. However, the runaway slave case exposes the flaw in this conclusion. For, clearly, many white southerners believed their states’ prohibitions on aiding fugitive slaves were well-grounded, yet it does not follow that conductors in the Underground Railroad were rightly punished for aiding them. Instead, it is the actual morality of the actions being performed that determines whether an extraterritorial violation of a prohibition should or should not be punished.

This implies, however, that there is a fundamental flaw in formalist accounts. These accounts aim to show that certain types of circumvention tourism should or should not be punished in principle. ²⁹ Pennings and Huxtable hope to show that circumvention tourism for controversial fertility treatments and assisted suicide should not be punished because doing so promotes external tolerance, regardless of the actual morality of these procedures. Conversely, Cohen argues that circumvention tourism for abortion and assisted suicide should be punished if a country regards its prohibitions as normatively well-grounded, regardless of what readers take their actual morality to be. My argument implies that circumvention tourism’s punishability cannot be isolated from these broader debates in ethics. For whether it strikes us appropriate to extend a punishment extraterritorially will depend heavily on the actual morality of the prohibitions and treatments in question. If they punish a very great moral wrong, then, apropos Murder Island, extending them will likely be justified, whereas this conclusion may not follow in cases where punishments are outright immoral (punishing those who aid runaway slaves) or punish only minor wrongdoings (underage drinking).