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Abortion and Foot Voting in Post-Dobbs America: Prospects for Change

30 Mar 2023
By Professor Ilya Somin
Activists in support of and in opposition to the Affordable Care Act's contraception madate rally outside the Supreme Court in Washington during oral arguments for Sebelius v. Hobby Lobby. Source: American Life League/

The divisive nature of the pro-life/pro-choice debate in the United States is well-known. Less widely appreciated are potential developments that might lead more people to “vote with their feet” for abortion policies they prefer.

As described in Part I of my series on abortion and foot voting in the wake of Dobbs, the broader response to the Supreme Court’s 2022 decision holding there is no constitutional right to abortion is likely to lead to only modest abortion-driven foot voting. The combination of contraception, mail-order abortion pills, and traveling out of state to get an abortion provide relatively low-cost substitutes for in-state abortion access for most women. In addition, exclusionary zoning, high taxes, and job-killing regulations reduce the attractiveness of many pro-choice “blue” states to potential foot voters.

But a number of factors might change that. Most obviously, policy changes could potentially reduce or eliminate low-cost alternatives to in-state abortion access. For their part, blue states have been taking steps to make themselves more attractive to would-be movers.

The most obvious shift that could change foot voter calculations is that conservative states might try to ban contraception. But contraception is overwhelmingly popular in the United States and doesn’t generate the same kinds of deep-seated, left-right divisions as abortion. Polls indicate that some 90 percent of Americans – including large majorities of Republicans – believe condoms and birth control pills should be legal in “all” or “most” circumstances. Smaller, but still very large, majorities support “Emergency contraception like Plan B,” including 70 percent of all Americans, and 62 percent of Republicans.

Thus, it is unlikely that any state governments will impose major restrictions on contraception, especially the most widely used methods. If they try to do so, federal courts are likely to strike down those laws. Despite claims to the contrary, there is virtually no chance that the Supreme Court will overturn its precedents protecting the right to contraception (I explained why in a May 2022 Politico symposium).

A conservative group has filed a lawsuit claiming that the federal Food and Drug Administration (FDA) illegally approved Mifepristone, a drug used in most medication abortions. The plaintiffs’ legal arguments are dubious. But they could potentially get a favorable ruling, at least at the initial trial court stage. If the plaintiffs ultimately prevail, it would make mail-order abortion much more difficult. States could potentially try to ban mail-order pills themselves, but would face serious legal obstacles to doing so.

As with mail-order pills, red states could also try to ban interstate travel to get an abortion. The Missouri state legislature has already considered doing just that, and Idaho is considering a more limited ban, focusing on travel by minors. But such restrictions probably would not stand up in court, as there are multiple strong constitutional arguments against them. In a concurring opinion in the Dobbs case, Justice Brett Kavanaugh – a key member of the conservative majority on the Supreme Court – emphasised his view that such restrictions would indeed be unconstitutional. While Kavanaugh’s opinion isn’t binding on lower courts, it’s a strong sign that the Supreme Court would strike down a state abortion travel ban if such a case came before it.

A future Republican-controlled Congress could potentially ban mail-order abortion pills, interstate travel to get an abortion, or even both. Federal legislation in this area might still be subject to legal challenge, but this is less likely to be struck down than state laws. In that event, women who value access to abortions would have stronger incentives to move. The same applies if the lawsuit challenging FDA approval of Mifepristone succeeds.

A Republican Congress could, of course, potentially pass a federal law banning or severely restricting abortion entirely. Similarly, a Democratic Congress could potentially pass a nationwide law protecting abortion rights. If either occurred, abortion-driven foot voting would become much less appealing, except for those willing and able to leave the country entirely.

Either type of law could potentially be struck down by courts, and I myself believe either would be unconstitutional. But it is difficult to say which way the Supreme Court would rule if the issue came before it.

If a sweeping nationwide abortion regime were enacted and survived legal challenges, it would obviously eliminate most incentives for abortion-driven interstate migration. But a nationwide abortion ban would create a large-scale abortion black market, and liberal states may be unwilling to help the federal government enforce restrictions, perhaps even passing abortion “sanctuary” laws denying such assistance.

In the United States, as in Australia, the vast majority of law-enforcement personnel are state and local government employees. There are over 1.2 million state and local law enforcement personnel compared to just 137,000 federal ones. As a result, the federal government is often heavily dependent on state and local cooperation to facilitate enforcement of federal legislation. Faced with a federal abortion ban, “blue” state governments could enact “sanctuary” laws denying enforcement cooperation, a strategy successfully used by liberal immigration sanctuary jurisdictions  (which restrict assistance in deporting undocumented immigrants) and conservative gun sanctuaries (which do the same with respect to enforcement of many federal guns laws). Abortion sanctuaries could greatly constrain the enforcement of any sweeping federal abortion ban, just as immigration and gun sanctuaries have constrained enforcement of federal immigration laws and gun restrictions. Political realities will make it difficult to pass any major nationwide abortion laws, whether of the pro-life or pro-choice variety. Such legislation would probably require one party to control both houses of Congress and the White House. In addition, they would need a large enough majority in the Senate to overcome or change “filibuster” rules, which enable the minority party to block most regulatory legislation, so long as at least 41 senators are willing to use the filibuster to do so.

While pro-lifers could try to eliminate low-cost alternatives to in-state abortion, pro-choice states could potentially take steps to make themselves more attractive to movers, by such steps as lowering taxes, reducing licensing restrictions, and – most important – curbing exclusionary zoning, which makes it extremely difficult to build housing in response to demand, and thereby prices many potential lower-income movers out of the housing market.

Several blue states, most notably California and Oregon, have in fact recently enacted significant zoning reforms, or are seriously considering doing so. The ultimate extent and impact of these measures remains to be seen. The more blue states are able to overcome their weaknesses, the more attractive they will be to potential foot voters, including those dissatisfied with red-state abortion policies.

In sum, the most likely scenario is that there will be relatively little abortion-related  foot voting between American states. But various circumstances could potentially change that. As always, predictions are hard to make – especially about the future.

Divisions between red states and blue states over abortion are to a large extent unique to the United States. Few other advanced democracies have a pro-life movement anywhere near as strong as that which exists here.

But the general phenomenon of policy-driven foot voting exists in many federal systems. It is probably somewhat less common in Australia, because there are only eight subnational jurisdictions there is much less policy variation between them than in the US and EU. In addition, the Australian political system makes it somewhat easier to enact federal legislation overriding state-level diversity, than is the case in the US.

Still, the US experiment in state-level variation on abortion policy – and US foot-voting patterns more generally – can potentially provide useful lessons for other federal systems, helping them learn what kinds of policy variations drive migration, and how to generate beneficial interjurisdictional competition in attracting migrants.

This article is part two 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.