The Volokh Conspiracy
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If Roe v. Wade gets overruled, as now seems increasingly likely, will Americans "vote with their feet" for states that protect abortion rights? That's a question I've often been asked in recent months, perhaps because I have written extensively about foot voting, including a book on the subject. In this post, I try to address it. But I warn that I don't have any definitive answer. The key reason why is that we have no recent American precedent for abortion restrictions as severe as those likely to come into effect in some red states. My tentative judgment is that such foot voting will indeed occur, but probably only on a modest scale. But I could easily turn out to be wrong about that.
In one sense, the answer to the question of whether will people will vote with their feet for pro-choice states is obviously "yes." In a diverse nation with over 330 million people, it is inevitable there will be some who value abortion rights so much they are willing to move away from a state that significantly restricts them. But the more significant question is how many people will move because of such concerns? Will it be a flood or just a trickle?
On that question, it's difficult to come up with any kind of definitive answer. The reason why is that, thanks to Roe, we have had only relatively modest variation in abortion regulation between states over the last 50 years. At the very least, we haven't seen anything like the recent Texas and Oklahoma laws banning nearly all abortions more than six weeks into a pregnancy. The Texas law, of course, has been in effect for several months now. But that isn't enough time to tell us much about the impact on migration patterns.
So far, there is little evidence that abortion restrictions drive interstate migration. To the contrary, many of the states that have gained the most migrants in recent years are ones that tightened abortion laws since 2010, most notably Texas and Florida. Such issues as job opportunities, housing costs, and taxes seem much more significant to foot voters than abortion. But the combination of the end of Roe and the new wave of draconian abortion laws could potentially change that.
There is a big difference between a state where a legal abortion is incrementally more difficult to obtain, and one where it becomes almost impossible for most women to get one in-state. The latter situation could generate a lot more foot voting than the former.
There is a long history of people voting with their feet to escape oppression of various kinds. Notable historical examples include blacks fleeing the Jim Crow-era South, Mormons fleeing to Utah, and gays and lesbians moving to relatively more tolerant jurisdictions. Severe abortion restrictions may also be a kind of oppression that women might flee in the same way.
I'm a believer in the "my body, my choice" principle. Indeed, I would take it much further than most! I therefore agree that the vast bulk of abortion restrictions are unjust. But that does not, by itself, tell us how many people fear them enough to vote with their feet to escape them.
A key 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 abortion provider within your own state. The most obvious is contraception. For women who want to avoid unwanted pregnancies, this is an obvious option, and one that can be purchased at most drugstores and supermarkets (though, of course, I recognize that some of the most potent contraceptives are harder to acquire than that).
There is also the option of mail-order abortion pills. "Medication abortions" already account for some 54% of all US abortions, and that percentage could well increase in a post-Roe world. Conservative states could try to suppress mail-order abortion pills. But enforcing such bans is likely to be extremely difficult. I doubt a "War on Abortion Pills" will be much more successful than the War on Drugs. It might even be less effective, in as much as states that ban such pills are often likely to have neighbors that do not.
Finally, blue and purple states are likely to continue to have liberal abortion laws, regardless of what the Supreme Court says. Many are taking steps to make it easier for non-residents to obtain abortions there, if their home states forbid it. During the lengthy era when Ireland banned abortion, while Britain did not, every year many thousands of Irish women went to the UK to get abortions. A similar trend could emerge in a post-Roe US. As far as I know there was little abortion-driven migration from Ireland to the UK during that period. But I welcome correction from experts on Ireland!
Conservative states could try to enact laws banning residents from seeking abortions out-of-state. But such laws are vulnerable to legal challenge on various grounds, including the Dormant Commerce Clause (which bars state interference with interstate economic transactions), and the right to travel. Even if restrictions survive legal challenges, they may prove difficult to enforce, especially in the face of resistance and noncooperation by authorities in destination states (which are likely to be blue pro-choice jurisdictions).
For large numbers of women, one or more of the above options is likely to prove more attractive than a permanent move to a state with more liberal abortion laws. That's especially true if the latter state is less appealing than their former home in other ways, such as job opportunities or housing costs.
Many of the above options are actually forms of what I have called private-sector foot voting. One advantage of such strategies is that people can often use them without having to permanently migrate and in some cases (such as using contraception) without having to do much traveling of any kind.
I don't claim these alternatives are perfect substitutes for abortion in every case. For example, contraception obviously doesn't help in cases of rape, or situations where a woman needs an abortion to protect against a health risk that only becomes evident after the pregnancy has begun. But the alternatives are likely to be effective in a high percentage of situations, which in turn is likely to greatly reduce the amount of abortion-driven migration.
By contrast, there were few if any substitutes for foot voting when it came to the kinds of oppression that have historically led to large-scale interstate migration. Most obviously, Jim Crow-era southern blacks had no good way of avoiding the impact of segregation (except those few who could "pass" for white). In jurisdictions with strongly homophobic policies, gays and lesbians had little opportunity to avoid rampant discrimination, except by remaining in "the closet" – a choice with fairly obvious severe drawbacks.
Today, much foot voting is driven by housing costs, job opportunities, and tax rates. Texas's relative advantages on these three dimensions are the big reasons why it has been the biggest net gainer of population from internal migration within the US, over the last decade. Notice that all of these are issues that are hard to avoid by means short of exit.
If zoning restrictions make housing unaffordable in your area, it's hard to find cheap alternatives, except by leaving or being homeless. If taxes are too high, the main alternative to leaving is some form of tax evasion or black market work (both of which have serious dangers and drawbacks). Ditto if restrictive policies severely limit the availability of job opportunities, though the most desirable workers could still beat the odds, and thus have less reason to move.
It's also possible that abortion restrictions will lead some people to move not because they want to access abortion themselves, but simply because of moral abhorrence at living in a jurisdiction that restricts women's liberty in this way. By the same token, some pro-lifers might, out of moral considerations, seek to leave states that continue to have liberal abortion policies. I'm sure there will be a few cases of both kinds. But probably very few.
Historically, migration driven by moral abhorrence of policies that have little or no effect on the would-be migrants or their families is rare. Such cases, it should be noted, are different from ones where people migrate because persecution prevents them personally from living according to their religious or moral principles, as in the case of Jews fleeing forced conversion in Spain.
For these reasons, my best guess is that the end of Roe (assuming it happens) will lead to a substantial increase in abortion-driven migration compared to the preexisting baseline, but still only a relatively small amount of movement in absolute terms. It will be vastly smaller than, say, the 20th century Great Migration of African-Americans to the north, or even than recent movement of people to states with better housing and job opportunities.
But I admit I could be wrong about that. It's possible that women value the option of having an abortion more than the above suggests, and that many see it as greatly superior to the available alternatives, even if the latter might seem cheaper and easier than migration.
The situation might also change if blue states with liberal abortion policies became more attractive to migrants in other ways, most notably by cutting back on zoning restrictions that currently make housing in many blue areas prohibitively expensive for would-be working class and lower-middle class migrants. Some have begun to liberalize zoning policy, and that trend could continue to spread. The cause of zoning reform might even get a boost from abortion rights advocates. In a post-Roe world, to be truly pro-choice you should also be pro-YIMBY!
If the Supreme Court overrules Roe, there will be much greater interstate variation in abortion policy than at any time since 1973. Whether and to what extent that leads people to vote with their feet against restrictive jurisdictions remains to be seen.