The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In the aftermath of the Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization, overturning Roe v. Wade, many "red" states enacted tough new abortion restrictions. Abortion rights advocates feared and pro-lifers hoped that this would result in a major decrease in the number of abortions in the US. Some also predicted that many people might "vote with their feet" against abortion bans by moving to pro-choice states.
So far, however, data suggests none of this has happened. As the New York Times reports, data compiled by the pro-choice Guttmacher Institute indicates that the number of abortions may even have increased since Dobbs. That's largely because many women have gotten around state restrictions by traveling to more liberal states to get abortions:
Legal abortions most likely increased in the United States in the first six months of the year compared with 2020, an analysis of new estimates shows, as states with more permissive abortion laws absorbed patients traveling from those with bans and access to abortion pills via telemedicine continued to expand.
New research from the Guttmacher Institute offers the latest view of legal abortions since the Supreme Court's Dobbs decision last year upended access to abortion nationwide and allowed more than a dozen states to ban or restrict the procedure.
The data suggests that thousands of women have crossed state lines to obtain an abortion, in the face of restrictions at home. It also indicates a rise in abortions among those living in states where the procedure is legal…..
Altogether, about 511,000 abortions were estimated to have occurred in areas where the procedure was legal in the first six months of 2023, a review of Guttmacher's data shows, compared with about 465,000 abortions nationwide in a six-month period of 2020.
Abortions rose in nearly every state where the procedure remains legal, but the change was most visible in states bordering those with total abortion bans. Many of these states loosened abortion laws, and providers opened new clinics to serve patients coming from elsewhere.
Guttmacher and the New York Times used 2020 as a baseline, because that is the latest pre-Dobbs year for which they have full data. I wondered whether the 2020 numbers are artificially low, because some abortions were forestalled by Covid lockdowns and other pandemic-era restrictions. But that appears not to have been a major factor. Guttmacher estimates that the number of abortions in 2020 (930,000) was actually slightly higher than in pre-pandemic 2019 (about 916,000). The CDC, by contrast, estimated a slight 1.5% decrease between 2019 and 2020. But even that seems relatively minor.
A separate study conducted for the 538 site found that, in the first nine months after Dobbs, there were about 93,575 fewer abortions in states that banned or severely restricted abortions, but that this was in large part offset by an increase of 69,285 abortions in other states—an increase driven largely by interstate travel. The 538 estimate implies a reduction of roughly 32,000 abortions over a full year. But even that isn't very much when we recall that Guttmacher estimates a total of 930,000 annual abortions in 2020.
The 538 study suggests draconian restrictions in numerous states have achieved only about a 3% reduction in the number of abortions. The Guttmacher data imply there may be no reduction at all. I suspect the truth is somewhere in between.
Meanwhile, there is little or no evidence of any major abortion-driven migration away from states with harsh abortion restrictions. Perhaps it will yet happen. But it hasn't so far.
In a series of articles published earlier this year (see here and here), I tentatively predicted there would be relatively little abortion-driven "foot voting" through interstate migration because most women who want abortions could get around restrictions more easily by temporarily traveling to other states to get one or by doing mail-order "medication" abortions. That appears to be exactly what has happened. I also noted that interstate travel and medication abortions are themselves a kind of foot voting, albeit less far-reaching and less costly than migration.
None of this proves the new abortion restrictions are costless. Far from it. Having to go out of state to get an abortion is costly and inconvenient, particularly for poor women and those with relatively inflexible work schedules and domestic obligations. The new laws have also severely impacted abortion providers in the affected states. But interstate mobility has negated many (though not all) of the worst potential effects for women seeking abortions.
I'm pro-choice and an advocate of broad rights of bodily autonomy. So I welcome this effect of interstate mobility, even though I continue to decry the state laws that made it necessary.
But for pro-lifers, this state of affairs must be disappointing. It may lead some red states to try to enact laws barring their citizens from crossing state lines to get abortions, or punishing those who aid them, a step already considered by state legislatures in Missouri and Idaho.
If such laws are adopted, they are likely to be struck down by the courts. There are multiple strong constitutional arguments against them. In a concurring opinion in Dobbs, Justice Brett Kavanaugh – a key member of the conservative majority on the Supreme Court—said such bans are unconstitutional. While Kavanaugh's opinion isn't binding precedent, it's a strong sign of what the Supreme Court is likely to do if the issue comes before them.
Many pro-life activists and GOP politicians, including several presidential candidates, have advocated national abortion bans imposed by the federal government. I think such bans would also be unconstitutional, as beyond the scope of congressional power under Article I of the Constitution. But, unlike with state-imposed travel bans, I am very uncertain as to what the Supreme Court would do on this issue. Of course, it would not be easy for Republicans to enact a nationwide ban in the first place, as it would likely require simultaneous GOP control of both houses of Congress and the White House, plus willingness to suspend or abolish the filibuster (as otherwise 41 pro-choice senators could use that rule to block the legislation).
In addition, it's worth noting that mail-order abortions may be constrained by currently ongoing litigation over the legality of mifepristone, the leading abortion pill used in the US. The US Court of Appeals for the 5th Circuit recently rejected claims that the FDA was wrong to approve it, but did strike down recent agency policies making access easier. The issue may well be ultimately resolved by the Supreme Court. If medication abortion is severely constricted, that may stimulate more interstate travel to get abortions, and perhaps even some interstate migration.
The future of abortion rights in the US remains uncertain. Much depends on what Congress does in the future, and how the courts react to it. But, so far, the combination of federalism and mobility has significantly limited the impact of Dobbs.