What does moderate abortion policy look like after Dobbs?

Allowing voters in each state to determine their state’s abortion policies would be broadly popular, but requiring some women to travel for abortions would create effectiveness and equity concerns that would need to be mitigated by other policies

Introduction

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturned its earlier decisions in Roe v. Wade and Planned Parenthood v. Casey in holding that abortion is not a protected right under the U.S. Constitution. Even prior to Dobbs, states were active in adopting new abortion policies, but Roe and Casey had effectively imposed a floor on those policies since 1973. In particular, under Casey, states could not prohibit abortions prior to the viability of the fetus, nor could they impose any restrictions on pre-viability abortions that placed an undue burden on a woman’s right to terminate her pregnancy.

Now, states can impose almost any prohibitions or restrictions on abortions. In addition, Congress, which had largely stayed out of abortion policy since Roe, has new pressure to adopt national abortion policies. Indeed, the Democratically-controlled House of Representatives has already passed two abortion bills: the Women’s Health Protection Act, which would go beyond Roe and Casey by prescribing a more stringent test for pre-viability restrictions and by requiring an exception for the life or health of the woman post-viability, and the Ensuring Access to Abortion Act, which would prohibit states from interfering with people’s access to out-of-state abortion services, including drugs. Neither bill has enough support in the Senate to meet the 60-vote threshold needed to avoid a filibuster. Four moderate Senators introduced the Reproductive Freedom for All Act, which would essentially codify Roe and Casey into federal law. While that bill is also unlikely to pass the current Senate, it is possible that Congress could pass a similar bill at some point with some support from pro-choice Republicans.

Therefore, the question that we will consider is: From a moderate policy perspective, is it preferable for states to have almost unlimited freedom to adopt abortion policies that suit the needs and preferences of their residents, or would it be preferable for Congress to again impose a floor on those policies by codifying Roe and Casey into law?

It would normally be better to allow each state to adopt its own policies in an area of social policy as sensitive as abortion. A 2014 Pew Research study found that abortion preferences varied significantly across states. The percentage of state residents who responded that abortion should be legal in all or most cases ranged from a high of 74% in Massachusetts to a low of 35% in West Virginia. Overall, 14 states and the District of Columbia had at least 60% of residents who responded that way, while 7 states had no more than 40% of residents responding that way. With so much variance in state preferences, it would not be ideal for the federal government to impose a national policy that two-thirds of people in some states would not want.

There are, however, at least two reasons why it might be preferable to have a base national abortion policy, as we did under Roe and Casey, and then allow states to vary in their abortion policies above that floor. First, if some states prohibit almost all abortions, significant numbers of their residents may travel to other states for abortion services, which has societal costs, even for women who can afford the time and money. Second, requiring women to travel out-of-state for abortion services will create significant equity concerns, as poorer women will be less able to access those services. Some would add a third reason, that the right to abortion is a basic human right, but that argument is beyond the scope of this analysis.

So, we need to take a closer look at the question of whether it is preferable to have a base national abortion policy or to allow the states almost unlimited discretion in this area. We’ll first consider the likely result under each of those alternatives and then compare those results in terms of effectiveness, legal feasibility, social acceptability, and equity.

What is the likely result if Congress adopts a base national abortion policy?

As discussed above, the broadest national abortion policy that Congress would be likely to pass in the near future is a policy that essentially codifies Roe and Casey into federal law, such as the Reproductive Freedom for All Act. If this were to occur, the landscape in the states would likely return to something similar to the pre-Dobbs landscape. In particular, most states would prohibit abortions after fetal viability or a stated gestational age around that time, and conservative states would maintain additional abortion restrictions, such as parental notification and consent requirements, counseling requirements, waiting periods, ultrasound requirements, physician and hospital requirements, and prohibitions on private insurance coverage. Prior to Dobbs, 37 states had parental notification or consent requirements, 33 states had counseling requirements, 26 states had a waiting period, 28 states had ultrasound requirements, 36 states required abortions to be performed by a licensed physician, 19 states required abortions to be performed in a hospital after a stated gestational age, and 12 states prohibited private insurance from covering abortions.

The Guttmacher Institute, a research and policy organization that promotes sexual and reproductive health and rights, rates how hostile or supportive each state is to abortion rights. It calculates an index for each state using six major abortion protections and six major abortion restrictions. The state earns one point for each protection that it has and loses one point for each restriction that it has, so the scores range from -6 to 6. The map below shows this index for each state at the end of 2020.

This map shows that most states tended toward the extremes, with fewer states having moderate policies. In particular, 21 states had scores ranging from -4 to -6, which the Guttmacher Institute considers to be “hostile” to abortion rights, while 6 states had scores ranging from 4 to 6, which it considers to be “supportive” of abortion rights. The remaining 23 states had scores ranging from -3 to 3. This movement toward the extremes had increased over time. In 2010, only 10 states were considered to be hostile and only 2 states were considered to be supportive. And in 2000, only 4 states were considered to be hostile and only 1 state was considered to be supportive. Therefore, if Congress were to codify Roe and Casey into federal law, it is likely that states would resume their movements toward the policy extremes above that floor set by Congress.

What is the likely result if states retain almost unlimited discretion to make abortion policy?

The New York Times is tracking abortion policies in the states since the Dobbs decision. The map below displays the current state of these policies. Ten states now prohibit almost all abortions (coded as -4 below), 4 states prohibit almost all abortions after six weeks (coded as -3), and 3 states prohibit almost all abortions after gestational ages ranging from 15 to 20 weeks (coded as -2). In addition, one state has a ban on almost all abortions that will soon take effect (coded as -1) and 9 states have bans that have temporarily been blocked by state courts, but that could take effect in the future (coded as 0). Conversely, 15 states and the District of Columbia allow abortions at least until fetal viability without significant restrictions (coded as 2), and 8 states allow abortions at least until fetal viability, but with some restrictions (coded as 1).

Unsurprisingly, the post-Dobbs map looks similar to the pre-Dobbs map. It is important to note, however, that, while the liberal post-Dobbs extremes are essentially identical to the pre-Dobbs extremes, the conservative post-Dobbs extremes are more extreme than the pre-Dobbs extremes, because Roe and Casey had imposed a floor on conservative states’ abortion policies.

There are some exceptions to the general pattern of conservative states imposing post-Dobbs abortion bans. Some of the bans that have been temporarily blocked by state courts may continue to be blocked under state supreme court interpretations of state constitutions, especially in states like Montana, North Dakota, South Carolina, West Virginia, and Wyoming. In Kansas, a ballot measure to amend the state constitution to specifically exclude abortion rights was rejected by voters. In Nebraska, a bill to adopt a ban on almost all abortions failed in the state legislature. In New Hampshire, most abortions are legal through 24 weeks and the legislature has not attempted to impose a stricter ban post-Dobbs. And in Alaska, the state supreme court has interpreted its state constitution to protect abortion rights and the legislature has not attempted to impose a new ban post-Dobbs.

So, in comparing the likely results under our two scenarios – a base national abortion policy or almost unlimited state discretion – we are really comparing the likely results in 20 to 25 of the most conservative states. Under a base national policy that codifies Roe and Casey, those states would likely have legal but significantly restricted abortion through fetal viability. Without that base national policy, those states would likely prohibit almost all abortions starting at some gestational age prior to viability, although that age would likely range from 0 to 20 weeks.

Comparing the two scenarios in terms of effectiveness

Even with perfect data, it would not be possible to determine whether specific abortion policies are effective, because the two sides disagree about what it means for an abortion policy to be effective. Both sides agree on an initial objective of reducing the number of unwanted pregnancies. But beyond that goal, pro-life activists’ secondary objective is to reduce the number of unwanted pregnancies that result in abortions, while pro-choice activists’ secondary objective is to make abortions as accessible and safe as possible for women who want them. But even if an abortion policy reduced the number of unwanted pregnancies, pro-choice activists would likely not consider the policy to be effective if it achieved that objective by intimidating women with the knowledge that it would be difficult or impossible to obtain an abortion.

Therefore, we cannot determine whether specific abortion policies are effective; we can only attempt to determine the impact of policies on different outcomes, like the number of unwanted pregnancies, the number of abortions, the number of illegal abortions, or access to abortions.

Impact of public funding restrictions

A 2009 review of 18 studies of public funding restrictions by the Guttmacher Institute summarized the results of those studies:

1. Public funding restrictions were associated with a reduction in the number of abortions, as about 25 percent of women who would have had Medicaid-funded abortions gave birth instead.

2. There is little evidence that public funding restrictions increased the number of illegal abortions.

3. The effect of public funding restrictions on the number of unwanted pregnancies is inconclusive.

Impact of parental notification and consent laws

Two reviews of parental notification and consent laws, a 2009 review of 16 studies by the Guttmacher Institute and a 2018 review by the Charlotte Lozier Institute, a pro-life organization, reached similar conclusions:

1. Parental notification and consent laws were associated with a reduction in in-state abortion rates among minors ranging from 13 percent to 42 percent, with most studies finding a reduction of 15 percent to 20 percent.

2. Some studies found that these laws were associated with an increase in out-of-state abortion rates among minors, but those increases were almost always much smaller than the reductions in in-state abortion rates.

Consistent with these reviews, a 2020 study found that parental notification and consent laws adopted before the mid-1990s were associated with a 15 to 20 percent reduction in abortion rates among minors. However, that study found that laws adopted after the mid-1990s were not associated with any reduction in those rates.

Impact of mandatory counseling and waiting period laws

A 2009 review of 12 studies of mandatory counseling and waiting period laws by the Guttmacher Institute summarized the results of those studies:

1. The clearest impacts were found for Mississippi’s mandatory counseling and waiting period law, which was associated with a decrease in in-state abortion rates, an increase in out-of-state abortion rates, and an increase in second-trimester abortions.

2. Waiting period laws that allow the mandatory counseling to be delivered online or by mail or telephone were not associated with reductions in abortion rates.

Studies by the Charlotte Lozier Institute have found impacts from specific mandatory counseling and waiting period laws. Laws requiring women to view color photos were associated with a 2% to 7% reduction in abortion rates. And laws requiring women to make two separate visits to the provider were associated with a 7% to 12% reduction in abortion rates.

If we extrapolate the results of these studies on the impact of specific abortion restrictions to broader abortion bans, the bans in the 20 to 25 states discussed above could result in:

1. Decreases in in-state abortions

2. Smaller increases in out-of-state abortions

3. Uncertain effects on the number of unwanted pregnancies

4. Uncertain effects on the number of illegal abortions

As we mentioned above, the likely increase in the number of out-of-state abortions is concerning. Women in most states with abortion bans will likely be able to drive to a neighboring state where abortions are permitted, but as the post-Dobbs map above shows, some women may need to travel several hundred miles to reach such a state. An out-of-state abortion could cost as much as $10,000 in airfare, hotel, childcare, and car rentals and require at least two days. Even for women who can afford the money and time, the costs to the woman, her family, and her employer are significant. Many of America’s largest companies have announced that they will reimburse their employees for all of some portion of travel costs to access abortion services. Of course, that practice will not eliminate the extra costs; it will merely shift those costs from the women to their employers.

There are additional complications involved with the idea of women obtaining abortion services in other states. Some states are considering laws that would penalize people who seek abortions in other states or assist in providing out-of-state abortions to their residents. Such a law would probably have difficulty surviving legal challenges. Indeed, Justice Kavanaugh, one of the Supreme Court Justices who voted to overturn Roe and Casey, wrote in his concurring opinion that he did not think states could prohibit women from traveling for abortions, because of the Constitutional right to interstate travel. Therefore, these travel bans are unlikely to be a significant complication over the longer term.

In addition, some states that have banned abortions have also attempted to prohibit women from using abortion pills. First, it is unclear if states can prohibit doctors from prescribing an FDA-approved drug. Second, even if states can prohibit doctors from prescribing abortion pills, women can purchase abortion pills online from other sources that are difficult for states to regulate. Although the FDA has approved abortion pills for use only until the tenth week of pregnancy, they are now used in more than half of U.S. abortions and that practice seems likely to continue, even in states with abortion bans.

Comparing the two scenarios in terms of legal feasibility

Both of the scenarios that we are considering could be affected by the courts. If Congress were to codify Roe and Casey into federal law, the Supreme Court may find that law to be unconstitutional, as an intrusion on states’ police powers. And if the states retain almost unlimited discretion to adopt their own abortion policies, some state supreme courts will continue to find that abortion rights are protected under state constitutions; the main question is how many state supreme courts will reach that conclusion. As discussed above, 8 states have abortion bans that have been temporarily blocked by their courts and, even in some conservative states like Alaska and Kansas, their supreme courts have permanently blocked those bans. Therefore, comparing our two scenarios, legal issues could completely undermine the scenario with a base national abortion policy. Under the scenario where states retain almost total discretion, legal issues would likely only reduce the number of states with pre-viability abortion bans from perhaps a maximum of 25 states to perhaps as few as 20 states.

Comparing the two scenarios in terms of social acceptability

Many polls have been conducted on American’s attitudes toward abortion policies since the Dobbs decision. Most of those polls are not that helpful in terms of distinguishing public support for our two scenarios. However, there are some exceptions. An August USA Today/Ipsos poll found that 70 percent of people would support using a ballot measure to decide abortion rights in their states. Notably, there was strong support for that idea across parties, including 73% of Democrats, 77% of Republicans, and 67% of independents. Most likely, this process would involve amending the state constitution to expressly state that abortion rights either are or aren’t protected. But the state legislature would still need to be involved in the process, as all 49 states that require voters to approve constitutional amendments (every state except Delaware) also requires the legislature to approve the amendment at least once; at least 9 states require the legislature to approve the amendment twice. Also, if a state constitution were amended to state that abortion rights aren’t protected, the legislature would still need to pass a law to prohibit abortions in the state.

Of course, many state legislatures may not be willing to involve voters in the process of setting abortion policies. And only 18 states allow voters to initiate a constitutional amendment. Only 5 states have abortion-related ballot measures in 2022, although voters in at least 13 other states attempted or are attempting to get abortion-related proposals on the 2022 ballot. Nevertheless, it seems unlikely that voters in most states will get the opportunity to vote on their state’s abortion policies.

However, even if most people are never able to vote directly on their state’s abortion policies, the USA Today/Ipsos poll referenced above is important because it suggests that significant majorities of Americans across parties support abortion policies being determined on a state-by-state basis. Activists on both sides would continue to work until all states adopt their preferred policies, but it appears that most Americans are willing to accept differences in policies across states.

Conversely, although a July Morning Consult/Politico poll found that Americans supported a federal law to protect abortion access by 57% to 34%, Republicans opposed that idea by 59% to 31%. (Democrats supported the idea by 78% to 16% and independents supported it by 61% to 28%.) Therefore, it appears that federal legislation to codify Roe v. Wade does not have majority public support across parties.

Comparing the two scenarios in terms of equity

As we noted above, the costs of traveling to another state for abortion services present more than just effectiveness concerns; they also present equity concerns. Poorer women are less able to afford those costs and less likely to work for companies that reimburse those costs. They are also more likely to be hourly employees who will lose wages if they take time off from work to travel.

Of course, there are also gender equity issues associated with these issues. The costs of abortion restrictions are borne almost entirely by women and many people consider severe abortion restrictions to be a form of gender discrimination. However, women’s opinions on abortion have not differed that sharply from men’s opinions historically; men have typically been about evenly divided in describing themselves as pro-life or pro-choice, while about 5% more women have typically described themselves as pro-choice than pro-life.

There are three ways that these equity concerns are being mitigated. First, there is the growing list of companies that will reimburse all of some portion of their employees’ travel costs for abortion services. Second, some Planned Parenthood affiliates and other nonprofit organizations are offering to pay all of some of those costs. Third, Medicaid could potentially cover some of those costs. President Biden recently issued an executive order directing HHS to encourage states where abortion is legal to amend their Medicaid rules to cover travel costs for women coming to their states for abortions; this process will take time, however, and it may face legal challenges because of a longstanding provision in HHS’s budget known as the Hyde Amendment, which prohibits federal funds from being spent on abortion services, except in cases of rape, incest, and to save the life of the woman. Of course, there is no guarantee that all of these supports will be available long-term, but it seems likely that some options will remain to help cover travel costs for out-of-state abortions.

Conclusion

We considered the two most likely scenarios for abortion policy after the Supreme Court’s decision in Dobbs. A federal law to codify Roe and Casey would return the country to the prior status quo, but such a law might also be found to be unconstitutional and would not have majority support from Republicans. Allowing states to retain almost total discretion over their abortion policies would create some inefficiencies by causing some women to travel out-of-state for abortion services and would have significant equity concerns for poorer women who would have difficulty affording that travel. However, allowing states to set their own abortion policies would be more legally feasible and would have majority support across parties, at least if the public were allowed to vote on those policies in each state. Also, state courts would likely mitigate extreme abortion bans in some states and travel cost reimbursement by companies, nonprofit organizations, and state Medicaid plans would likely mitigate the efficiency and equity concerns.

Therefore, a viable moderate policy option going forward could consist of:

1. No federal law codifying Roe v. Wade

2. Allowing the voters in each state to determine their state’s abortion policies

3. No state bans on out-of-state travel for abortions

4. Reimbursement of travel costs for out-of-state abortions by some companies, nonprofit organizations, and Medicaid plans in states without abortion bans