The Volokh Conspiracy

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My New Article on "Abortion and Foot Voting in a Post-Dobbs America"

It examines whether people are likely to "vote with their feet" based on interstate differences in abortion policy, after Dobbs. The first in a series of two articles on this topic.


In this Nov. 30, 2005 file photo, an anti-abortion supporter stands next to a pro-choice demonstrator outside the U.S. Supreme Court in Washington. (AP Photo/Manuel Balce Ceneta)


Yesterday, Australian Outlook (a publication of the Australian Institute for International Affairs), published my article on "Abortion and Foot Voting in a Post-Dobbs America." It's the first in a series of two pieces on the question of whether people are likely to "vote with their feet" based on state variations in abortion policy in the wake of the Supreme Court's ruling overturning Roe v. Wade last year. Here is an excerpt:

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 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 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.

I also briefly consider the little-discussed possibility that pro-lifers might leave "blue" states out of opposition to the pro-choice policies of the latter; I conclude this is unlikely to happen on any significant scale.

In the second article in this series, I will consider some factors that might lead to more abortion-drive migration than I currently expect.

This article is my first-ever in an Australian publication. I am a little surprised that they would ask me to write about this particular issue. But the US debate over abortion has attracted widespread attention around the world.

I have previously written about abortion and foot voting here and here.