Bioethicists are often interested mostly in national standards and institutions, but state governments have historically overseen a wide range of bioethical issues and share responsibility with the federal government for still others. States ought to have an important role. By allowing for multiple outcomes, the American federal system allows a better fit between public opinion and public policies.
The latent causes of faction are thus sown in the nature of man.... A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power ... have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.... [T]he CAUSES of faction cannot be removed, and ... relief is only to be sought in the means of controlling its EFFECTS.
--Federalist, No. 10
Bioethicists can be fairly accused of wanting to solve complex problems with single standards and national institutions. Both liberal and conservative bioethicists have pressed for national standards administered by federal agencies across a wide variety of issues, ranging from research ethics and assisted reproduction to the governance and financing of stem cell research. Despite this national focus, states have been and will continue to be principal players in bioethical decision-making. By contrast with other disciplines, bioethics has paid little systematic attention to the division of labor between state and federal governments. As a consequence, it has not adequately understood how federalism affects the development of policy and the rights of individuals.
The premise of this paper is that bioethicists' neglect of federalism is a mistake on two levels: it gets the facts wrong, and it downplays the important benefits of the division of power between the states and the federal government. Rather than being peripheral actors, state legislatures and courts have been and continue to be major participants in the establishment and implementation of bioethics policy. Moreover, state activism in bioethics is not a bad thing. A federalist system--a system that distinguishes between the limited but supreme powers of a central government on the one hand and the broad sovereign powers of each of the states on the other--offers considerable advantages in managing the political conflicts that inevitably arise from moral pluralism, particularly around questions where there is no clear national consensus. Attention to federalism is especially critical now, given the many current and emerging issues that either touch areas where states are already major actors or seem likely to produce the divided views among both policy-makers and the public that have driven recent state activism.
This paper develops these arguments in five parts. First it examines the current state of federalism in bioethical discussions. The second part then documents the states' current role as major actors across a wide range of bioethical issues and notes several factors that enhance state influence. The third presents the normative case for a larger state role in bioethical decision-making. Fourth, we offer two case studies that illustrate the empirical and normative features of the federal system in making decisions about bioethical issues. And finally, we consider the questions that need to be addressed in a "federalist" approach to bioethics in which both state and federal governments are recognized as important actors.
Federalism and Bioethics: Pluralism without Representation
The notion that questions of federalism have not received adequate attention in bioethical discussion should not be controversial. Bioethicists have had notably more to say about what happens in Washington than about events in state capitals. …