On Dobbs: More women must now travel (to states where abortion is legal), but rural women have been burdened by travel all along

In Dobbs v. Jackson Women's Health decided a few days ago, the U.S. Supreme Court overturned Roe v. Wade (1983). This means abortion will now only be available in some states, and the laws of other states prohibiting abortion will be respected--not trumped by a federal right.  This turn of events means the pro-choice community is once again talking about the burden of travel--travel from jurisdictions without abortion rights to those where abortion is legal.  

This focus on travel is a bit ironic to me because I have been writing about rural women in relation to abortion access for 15 years.  Yet that work--focusing on the distances rural women must travel to access abortion--has rarely gotten traction among mainline abortion scholars.  (My earlier work is here, here, here and here). 

Here's an excerpt from my first article on the topic, Toward a Feminist Theory of the Rural (2007), in which I sought to demonstrate that burden by reference to a woman living in Boulder, Utah, though which I'd travelled a few years earlier while visiting Grand Staircase Escalante National Monument.  Leavitt refers to Utah Women’s Clinic v. Leavitt, 844 F. Supp. 1482 (D. Utah 1994); Casey refers to Planned Parenthood of Pennsylvania v. Casey, the Supreme Court's 1996 decision holding that no state could pass a law that imposed an"undue burden" on the abortion right:

The geography of Utah may be referenced to illustrate th[e] point [that Casey's 'undue burden" standard, and the ways in which it has been interpreted, has particular consequences for rural women]. Consider first a working-class woman in Salt Lake City who enjoys little work schedule flexibility. She would likely have difficulty securing time off both to go through the informed consent meeting and to have the abortion. Depending on her schedule, she could arrange the two different appointments on different days of the same week or on consecutive weeks. If she were without a vehicle but lived in the Salt Lake City metro area, she would have some public transportation options to facilitate her journeys. Making two trips would likely be inconvenient, even burdensome to her. Multiple journeys might, for example, significantly increase the cost of the abortion if a lack of work flexibility or the existence of other duties forced her to schedule her second appointment during her second trimester. Still, the burden of the waiting period on her is unlikely to be as great as that on a woman living in rural southern Utah, as far as 300 miles from Salt Lake City.

Imagine a woman living in Boulder, Utah, for example, in the shadow of Grand Staircase-Escalante National Monument and fifteen miles from Utah Highway 12. She would be 327 miles (seven hours) from Las Vegas, (seven hours and fifty-five minutes) from Flagstaff, Arizona, hours and fifty-eight minutes) from Aspen, Colorado, 367 miles 381 miles (seven and 261 miles (five hours and twenty-nine minutes) from Salt Lake City, the locations of the four nearest abortion providers. These one-way travel times assume the woman has access to private transportation. If she does not and must rely on public transportation, her situation is even more dire. Boulder, Utah, has no public transportation services.

The nearest Greyhound bus stop is 143 miles (three hours and forty minutes) away in Parowan, Utah. Only two buses a day serve the Parowan-Salt Lake City route, and the journey each way is four hours. A woman without a car, living in Boulder would thus have to borrow a car or hitch-hike to Parowan, and then make a four-hour bus journey to Salt Lake City, the site of the nearest abortion clinic.

A working-class woman with little work schedule flexibility, but this time in rural Utah, will face considerable practical and financial obstacles to terminating her pregnancy. If, as Leavitt assumes, she is able to secure consecutive days off from work, her burden may nevertheless be greater than an overnight hotel stay. If she must travel several hours to reach the bus station and several more by bus to reach the abortion provider (and again to return home) the woman may need three or more consecutive days off work—and several nights’ hotel stay—to accomplish the termination. If, contrary to the Leavitt court’s assumption, she is unable to take several consecutive days off work, the obstacles are much greater. A woman in such a situation will not only have to make two return journeys to Salt Lake City by whatever means are available, each of those journeys may require several days. Contrary to Leavitt’s conclusion, then, the worst-case scenario may not be merely an overnight stay. It may be several days’ stay. It may, in fact, require two journeys, each lasting multiple days, with attendant impacts on the woman’s employment, family and financial circumstances.   

An even more dramatic example could be generated from the geography of Alaska, with its dearth of abortion services, which the Leavitt court used to illustrate its point that there is no constitutional right to convenience in procuring an abortion. But Casey made accessibility relevant by burden standard, and at some point—even the Leavitt court might concede if it acknowledged detailed facts—waiting periods constitute an undue burden for the most isolated, most disadvantaged women.

My aim here is not to identify the most extreme example of hardship created by waiting periods. Rather, it is to demonstrate that courts have not seriously considered the practical obstacles confronting rural women. As Judge Wood wrote in A Woman’s Choice, the undue burden question “is whether an Indiana woman living 60 miles away from a clinic in Indiana who cannot afford (either financially, socially, or psychologically) to make two visits” will be deterred from exercising her fundamental right. The undue burden standard is not only about the woman who is worst-situated for getting an abortion; it is about all those who will be deterred by the obstacle that the waiting period presents.

Certainly, some women in rural areas will be better situated to secure abortions than others, even in states with mandatory waiting periods. Women with job flexibility and security, and access to a car, child care, and—of course— money, will more easily overcome the obstacles. But the Casey Court said that, for the purposes of analyzing any regulation, “[t]he proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.”  (emphasis mine)

One purpose of this article was to make as real or identifiable as possible, for judges and scholars, the burden of distance.  I was trying to put them in the shoes of rural women. This approach--specifying just how great the practical burden would be on some women, was not one I'd then seen in briefs or court opinions; the closest to it was the NAACP brief in Casey, which mentioned rural women. 

By the time the Supreme Court decided Hellerstedt v. Whole Woman's Health (2016), the Court was paying much more attention to the burden of distance and even used the word "rural."  That explicit mention of rural women felt like a victory to me.  Here's what I wrote elsewhere (with Ezera Miller-Walfish) detailing the Hellerstedt Court's handling of the burden associated with rurality and distance more generally: 

In Whole Woman’s Health v. Hellerstedt, Justice Breyer, writing for the majority...used the word “rural” only once, though he used the word “miles” 19 times.

Specifically, Breyer quoted the trial (federal district) court opinion, which acknowledged the added burden the clinic closures were causing “poor, rural, or disadvantaged women.” The disadvantaged group most focused on in that litigation were Latinas living in the Rio Grande Valley, who tended to be “poor, rural and disadvantaged.” Interestingly, the Court did not again use the word “poor” or “poverty” in the majority opinion, which is bit unusual–and disappointing–given that poor women disproportionately seek abortions compared to their more affluent counterparts. The Court did, however, use the term “Rio Grande Valley” twice, which suggests that population drew particular solicitude.

The Hellerstedt Court’s use of “miles” also mostly tracked the district court’s findings, here about the specific impact of the law on women’s abortion access. Because the challenged law had the effect of closing abortion providers across Texas, the geographical distribution of abortion providers shifted, with these consequences:

[T]he number of women of reproductive age living more than 50 miles from a clinic has doubled, the number living more than 100 miles away has increased by 150%, the number living more than 150 miles away by more than 350%, and the number living more than 200 miles away by about 2,800%.

Also looming was the fact that if another pending restriction went into effect, Texas would have abortion providers “only in five metropolitan areas.” Finally, Breyer used “miles” when quoting the federal district court for the proposition that Texas is big–specifically, that it covers nearly 280,000 square miles and that 25 million people–5.4 million of them women of reproductive age–live on that vast land area.

Ultimately, Breyer’s opinion concluded:

We recognize that increased driving distances do not always constitute an “undue burden.” See Casey, 505 U. S., at 885–887 (joint opinion of O’Connor, KENNEDY, and Souter, JJ.). But here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit [from the Texas law], lead us to conclude that the record adequately supports the District Court’s “undue burden” conclusion.

That was a real victory for rural women, however defined, though the focus was much more on the distance–really increased distance–that any woman might have to travel to reach an abortion provider. Though this did not explicitly focus on rural women, the Hellerstedt majority went much further than any prior opinion in taking seriously material distance, expressed as miles traveled.

I thought, after Hellerstedt, that abortion rights were safe for a while.  And I was thrilled that the Court finally acknowledged the burden of distance.  But alas, we have seen now that the abortion right is entirely gone, leaving abortion access a patchwork among states. 

Somewhat ironically, this means many more women will be traveling for abortions--but they will be traveling between states--between those where abortion is illegal and those where it is legal.   Suddenly, it seems, the pro-choice community is thinking about the burden of travel again--just as they were before Roe v. Wade.  

My earlier musings here on Legal Ruralism about the struggle to get our urbannormative nation to see rural distance are here.  This story in the New York Times was especially urban-centric, focusing on the consequences when clinics in more remote parts of state (especially the Rio Grande Valley) closed, sending those rural women to the larger urban clinics that remained open and impeding urban women's access to services.  Of course, something similar will happen now, as women from "red" states will clog the abortion clinics in "blue" states, impeding the latter's access to services.    

Hannah Haksgaard of the University of South Dakota has also written about these issues here and here, the latter commenting on an international collection on the need to travel for abortion services, Abortion Across Borders: Transnational Travel and Access to Abortion Services by Christabell Sethna and Gayle Davis (2019).

Here is a related post from May, 2022, on the Daily Yonder.  Recent postings to that website also feature a useful map.