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.

Comments

[Ben_]

Australians might want to worry about local matters instead.

[The Margrave of Azilia]

“Crikey, nothin’ human is alien to me, mate.”

[Brett Bellmore]

I don’t know, regulating travel by minors without parental consent to do something illegal within the state seems like the sort of thing that might pass constitutional scrutiny, under at least some circumstances. Is the contrary well established?

[I woke up when Hillary talked about Reconstruction]

Nothng about right and wrong, killing and life. That is the problem.
Just another lost Utilitarian,what is the cheapest way to kill this baby.

Does nobody see the horror of lawyers being told by their ‘legal associations’ not to prosecute laws justly made.

All before the Civil War preachers in the south were told that the law would come after them if they quoted or preached any Bible verses that would lead someone to think that Blacks were equal.

[Moderation4ever]

As I and others mentioned in Part 1 of this series, the first people most likely to vote with their feet are health care workers, particularly OB/GYNs. These are the people most likely to be affected by strict abortion restrictions that leave them unsure of what they can and cannot do for their patients. This has occurred as evidenced by the case against Texas where patients said their doctors denied them services for fear of abortion laws.

If doctors and other healthcare workers leave the state, that state may get a poor rating for people starting families and result in additional people walking or more likely never going in the first place.

[Magister]

Beyond that, even women with no expectation of getting an abortion don’t want to be harassed about medications that someone thinks might be an abortifacient, or about their periods, or about other things aimed at women in those states.

[I woke up when Hillary talked about Reconstruction]

Naah, you mis-stated that. It is VERY often the opposite

see
THE AMERICAN ASSOCIATION OF
PRO-LIFE OBSTETRICIANS AND GYNECOLOGISTS
BOARD CERTIFIED. PROFESSIONAL.
MEDICAL EXPERTS IN THE PRO-LIFE MOVEMENT SINCE 1973

Very often it is doctors who in conscience cannot take a baby’s life, being forced by legal action or even professors at the medical school saying. You will kill this baby or you will not become a doctor.

[Stephen Lathrop]

Time to stop with the foot voting nonsense. Voting is a sovereign power to control government. Fleeing is just turning yourself into a refugee. It is about as close to government control of the fleeing victim as you can get. If government commits genocide, should we call that, “death voting?”

By now, Somin ought to have reflected on the dark moral shade of his advocacy. Maybe give some thought to the loss and wreckage refugees typically leave behind. I get that Somin is a person of good will, but he is in the grip of an ideological vice, and he ought to at least notice. Think of Einstein, in the act of leaving Germany, turning his wife around to look at their home, and saying, “Take a good look, you will never see it again.”

[Dilan Esper]

Voting isn’t a sovereign power to control government, and not all moving is “fleeing” or “becoming a refugee”.

I’m not saying you have to think “foot voting” is the greatest thing in the world, but I’d dare say it can be a lot more effective than your beloved franchise and the choice between Bad Politician A and Bad Politician B.

Changing the government is not some theory about sovereignty. It involves a lot of direct action, and “foot voting” is in fact part of it.

[Stephen Lathrop]

Esper, the libertarian impulse is pretty damned dark. It consists of people who are happy with their wealth and privileges saying to everyone else: “Screw you, if you don’t like it here, you are free to leave.” But with a nasty corollary: “And if you stay, we will do what we can to be sure you can’t use government to improve anything here.”

As for, “Voting isn’t a sovereign power to control government,” what the hell do you think it is?

Up above, I asked, “If government commits genocide, should we call that, ‘death voting?'” You know who would probably have answered, “Yes,” to that question? Crazy Horse. Who seems to have decided to vote that way, instead of to submit. I think it’s better to use votes to control government, and not have to submit.

The nasty thing about libertarianism is it gives power-hungry folks cover to pretend they aren’t. The best thing about it is that those same folks are ineffectual cranks, who lack any theory of government, and will never get anywhere unless that changes.

[Dilan Esper]

Stephen, the greatest example of foot voting in American history involved the internal migration of Black folk out of the South. Those heroes changed the destiny of the country in a very good way.

Meanwhile, your theories of sovereignty, and $5, will get you a latte at Starbucks. They don’t do anything. I prefer people who accomplish things.

(To answer your last question, voting elects representatives from a limited set of potential policymakers who then consider citizen input along with a lot of other factors in deciding major policy decisions. There’s no need to mystify it with talk of sovereignty- elected representatives disobey public opinion all the time.)

[Stephen Lathrop]

No. Elected officials do what they want when public opinion is divided. When public opinion is sufficiently unified to have something to say, public officials do as they are told. What do you suppose caused every governor in America to give up on public health mandates while the Covid pandemic was still under way?

[I woke up when Hillary talked about Reconstruction]

What caused every governor? The same thing that made them ACCEPT public health mandates to begin with !!! What kind of argument is that 🙂
Women can be men — okay, I will go with that, 51% want it
Men can marry men — okay, I could use the gay vote
even a 9 months it’s not a baby — okay, in my state they would more likely be members of the opposite party if i let them live ,let’s kill them

Note: without abortion Gore would probably have won the election handily

[Krayt]

“If a minor leaves the state for an abortion, the state could levy a tax on their leaving, the way California is trying to do to people fleeing their taxation.”

“Shut up,” he explained.

“If a minor can to go another state for an abortion, they can go to another state where the age of consent is lower, and have sex. And stay there for another abortion!”

“SHUT UPP!!”, he explained.

[ReaderY]

The biggest obstacle to mail-order abortion is not the dispute over the FDA approval. It’s the Comstock Act, which prohibits sending abortifacients through the mails.

[Brett Bellmore]

That’s assuming the Comstock act will be enforced, which is pretty unlikely under the current administration.

[ReaderY]

West Virginia is invoking it in a very mild way in its motion to dismiss in the GenBioPro case, just as support for its position that there’s no preemptive federal policy favoring the unhindered flow of abortifacients that overrides state restrictions as GenBioPro claims. But if there’s an opinion in the case or one like it saying it’s illegal, lawyers might realize a future administration wouldn’t be bound by this one and could enforce. And in the meanwhile states with abortion restrictions would be free to enforce them against mifepristone, so mail-order would not be the exception Professor Somin is saying it is.

[y81]

This whole discussion seems like a bizarre libertarian fantasy, but much less entertaining than, say, “The Moon Is a Harsh Mistress” or “The Dispossessed.” Population moves are going in the opposite direction from what Prof. Somin discusses, and will continue to do so. I realize that sexual freedom is the prime freedom valorized by academics, but people don’t choose where to live on the basis of whether they can obtain abortion. They choose based on things like taxes and housing affordability. A libertarian who cared about the concerns of ordinary people might write about those things, but not the Conspirators.

[I woke up when Hillary talked about Reconstruction]

Yeah, of course that is true,and obvious to a normal human being. You might say ” I want a place where I can raise my family” but you wouldn’t say “I want a place where I can kill my babies so I don’t have a family” Seriously