The Volokh Conspiracy

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My New Article "Abortion and Foot Voting in Post-Dobbs America: Prospects for Change"

Second in a two-part series published by Australian Outlook, a publication of the Australian Institute for International Affairs.


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)


Australian Outlook, (a publication of the Australian Institute for International Affairs), has published my article "Abortion and Foot Voting in Post-Dobbs America: Prospects for Change." This piece is the second in a two-part series. The first part, published last week, explained why post-Dobbs interstate variations in abortion policy may be unlikely to generate much in the way of foot voting by people seeking to avoid abortion restrictions—at least not the kind of foot voting that involves actually moving to another state. This one considers potential developments that might change that. Here's an excerpt:

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…

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…

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….

In the article, I also consider the possibility that the federal government might enact nationwide legislation on abortion, either of the pro-life or pro-choice variety.

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