Here’s a question that I’ve been thinking about in connection with the paper that I’m writing. Suppose that a state decides to impose an excise tax on abortions performed in the state. The rationale for the tax is: (1) we need more revenue; (2) it will discourage some abortions; and (3) it is a way of expressing moral disapproval of abortion.
A constitutional challenge to this tax would be that it imposes an “undue burden” on abortion rights under the Supreme Court’s analysis in Casey. This does not mean, though, that every tax on abortions would be invalid. In other words, an abortion tax is different from a poll tax (which is prohibited by the Twenty-Fourth Amendment and by Harper) and more like how we might look at a tax on guns. Some fundamental rights are free from taxes and others are not, though at some point a tax on an important constitutional interest would be struck down as too high.
I raise this because there are some constitutional controversies that might be defused though taxes. Take campaign finance reform for example. The current debate (at least with respect to Citizens United) is can corporations spend money to influence elections or not. It’s all-or-nothing situation. Suppose instead we said that a corporation must pay some surcharge on their taxes for campaign spending. This would do the same thing as an abortion tax, though again with the recognition that the tax cannot be prohibitory.
Granted, this is not a solution that will satisfy everyone (and I’m not saying that the Supreme Court majority would think this is acceptable), but it is worth considering.