Abortion Taxes

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.




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3 Responses

  1. Joe says:

    In Webster v. Reproductive Health Services, Blackmun didn’t seem to consider a “A tax on abortions” appropriate and Stevens in a letter during the proceedings raised the specter too. I know a tax on machine guns was upheld; I wonder how a tax on handguns in place to discourage their use would currently be treated.

    The abortion funding cases allow selective subsidies. I don’t know about targeted taxation of this type. As a “defusion” technique, this seems if anything a means to aggravate the issue. As to revenue, that’s rather feigned if all we have is a small tax just on abortions. A neutral tax on “unnecessary” (I’m not really keen on that term here, but it would be seen that way) health services of all kinds would be more appropriate. Clearly, 2/3 are the true reasons.

    I am not really sure if the corporate surcharge is useful either. I guess the logical thing there is not to allow that money to be taxed as ordinary business expenses, resulting in higher taxes. Something of that sort might work. I don’t think that’s really the problem though. Forcing corporations to spend a bit more money probably won’t satisfy people.

  2. Gerard Magliocca says:

    If we only permit a nominal tax, then I agree. I’m wondering if courts should give more leeway towards qualifying these rights through more substantial taxes rather than through regulatory restrictions or conditions. But I’ll have to work through that question.

  3. Joe says:

    Taxes or no taxes, all the regulations in place for abortion and campaign finance cost people a decent amount of money. So, I guess it boils down to what the money is for.