Has the 2022 Supreme Court ruling overturning abortion rights led to abortion-driven foot voting away from “red” Republican states? The answer is complicated. 

In June 2022, the US Supreme Court issued its ruling in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade, the 1973 decision holding that abortion is a protected constitutional right. In the aftermath of Dobbs, numerous conservative “red states” with Republican Party-controlled state governments enacted legislation severely restricting abortion or restored old abortion restrictions that had been blocked by Roe. By contrast, multiple Democratic-controlled “blue” states strengthened abortion rights.

More than at any other time in American history, we now have massive variation in abortion rights between states. That situation raises many issues, one of which is to what extent people will “vote with their feet” for the abortion regime they prefer. If they do, it’s possible that pro-life states will experience a “brain drain,” as high-skilled workers decamp for greener pastures. The answer to this question will only become clear over a period of several years.

For now, I tentatively predict that Dobbs will result in only modestly expanded foot voting in the sense of people permanently moving from one state to another. That is largely because many women seeking abortions can still get them through less costly forms of foot voting, such as getting an abortion in another state or getting a “medication” abortion using drugs ordered by mail. But the situation could potentially change, for reasons I will cover in part two of this series.

In the aftermath of Dobbs, there is enormous variation in abortion policy between American states. According to the pro-choice Center for Reproductive Rights, twelve states now forbid abortion in almost all circumstances. These are all conservative “red” states.” Several other states have enacted or reinstituted partial restrictions, such as Florida’s law banning most abortions later than fifteen weeks from the start of pregnancy. Red states may enact additional restrictions in the future.

By contrast, abortion remains legal, with few restrictions, in virtually all liberal “blue” states, and “purple” states, where the electorate is closely divided between Democrats and Republicans. The blue states of California and Vermont and the purple state of Michigan have recently enacted abortion-rights amendments to their state constitutions. Other blue and purple states protect abortion rights by legislation, through longstanding state-court rulings under their state constitutions, or simply by not enacting significant restrictions on it. Many blue-state abortion rights protections even go beyond what was required under Roe.

Historically, people have often “voted with their feet” to escape jurisdictions whose policies harm or disadvantage them. Notable examples include blacks fleeing the segregationist South, and gays and lesbians moving to relatively more tolerant jurisdictions. There is also a long history of people moving to states with lower housing costs, lower taxes, and better economic opportunities. The latter three factors are how states Texas, Florida, and Arizona have been major net gainers from population movements in recent years.

Foot voting has important advantages over ballot box voting, the more conventional strategy trying to change the policies you live under. Whereas an individual ballot box voter has only an infinitesimal chance of changing electoral outcomes and the policies of the government, a foot voter has much higher odds of being able to make a decisive choice. Foot voters also have stronger incentives to make well-informed decisions.

But foot voting is limited by moving costs. These include both the direct cost of moving, and such things as separation from family, and having to change jobs. Thus, foot voters are only likely to move if they believe the benefits are enough to outweigh those costs. That depends on the magnitude of differences in policies between jurisdictions, and whether the benefits of moving can be captured by lest costly means.

In some ways, severe abortion restrictions resemble the kinds of oppression and economic privation that have historically led to large-scale foot voting. An unwanted pregnancy can be a severe burden, and sometimes even a serious threat to a woman’s health. But many women have alternative, lower-cost options for avoiding that burden. I take “my body, my choice” further than most, and therefore believe most abortion restrictions are unjust. But that does not tell us how many people will vote with their feet to avoid them.

The main reason to think that the number of abortion-driven migrants will be modest is that there are often relatively low-cost substitutes for access to an in-state abortion provider. The simplest is contraception. For many, perhaps most, women who want to avoid unwanted pregnancies, this is an obvious option, and one that can be easily acquired in a variety of stores (though, of course, some of the most potent contraceptives are harder to get).

There is also the option of mail-order abortion pills. “Medication abortions” already accounted for some 54 percent of all US abortions before Dobbs, and that percentage could well increase in its aftermath.

Finally, red state residents seeking abortions are also likely to have the option of traveling to another state to do so. Travelling out-of-state to get an abortion is costly. But, for many women, it is likely to be cheaper than a permanent move to another state. That is especially true if the potential destination state has higher housing costs, higher income taxes, fewer job opportunities, or some combination of all three.

Many blue states do in fact feature higher housing costs, taxes, and job-killing regulations. This is a key reason why several of them – most notably California, Illinois, and New York – have been major net losers of interstate migrants over the last decade, even as the less regulated red and purple states of Texas, Florida, and Arizona have been leading gainers.

The combination of contraception, mail-order abortion pills, and travelling to get abortions out of state seems likely to keep abortion-drive migration low. This is particularly true in the case of more affluent, higher-educated women, who are especially well-positioned to take advantage of these options. For that reason, abortion-driven “brain drain” scenarios seem unlikely to occur on a large scale.

In a sense, these alternatives are actually lower-cost forms of foot voting than interstate migration. In my book Free to Move, I describe how private-sector alternatives to public services and government policies often function as a cheaper form of foot voting, with lower moving costs. Private-sector foot voting can help reduce the impact of state abortion restrictions, too.

There is also the possibility that people will move simply because they find abortion restrictions morally abhorrent, even if they themselves do not need an abortion (or can get around the restrictions). Similarly one can imagine pro-lifers leaving pro-choice states in order to express their values.

It is too early to definitively rule out such scenarios. But historically, few people undertake interjurisdictional moves for the sake of expressing opposition to policies that have little or no tangible impact on them or their families. For example, millions of Americans opposed the Vietnam War; but those who moved to Canada to escape it were overwhelmingly draft resisters who otherwise risked being drafted.

For the moment, the new wave of state abortion restrictions seems unlikely to generate more than modest interstate migration. That is in large part because of the availability of less costly forms of foot voting. But a variety of developments could potentially change that.

This article is part one in a two-part series. 

Ilya Somin is Professor of Law at George Mason University, and author of Free to Move: Foot Voting, Migration and Political Freedom. A few parts of this essay are adapted from material previously posted at the Volokh Conspiracy blog, hosted by Reason.

This article is published under a Creative Commons License and may be republished with attribution.