Can abortion be taxed?
As members of Congress discuss a tax on cosmetic surgery to pay for the healthcare bill, the blawgosphere covers the pressing question raised by Glenn Reynolds – whether this taxation of medical procedures could be extended to abortion.
Paul Caron suggests that a tax on abortion specifically (although not generally) would be seen as infringing on the constitutional rights of women:
In Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983), the Supreme Court held that a Minnesota use tax on the cost of paper and ink products violated a newspaper’s First Amendment rights. Although the precise contours of this doctrine are much debated, a tax singling out the exercise of the constitutional right of abortion would likely face special scrutiny. But a general tax on elective cosmetic surgery that also reached elective abortions may be permissible under the Minneapolis Star doctrine.
Jonathan Adler agrees, citing Casey specifically, but suggests that there might be quite a few SCOTUS Justices who disagree with its standards:
Of course, this assumes that Casey would govern the case, but I think that is a fair assumption. While at least two, and perhaps as many as four, justices believe the “undue burden” test is too restrictive on states, Justice Kennedy was part of the Casey decision that established this test and has shown no indication he is willing to abandon it.
To the pro-life movement, a tax on abortion would be the ultimate “Sin Tax”, but this entire debate seems to me to only illuminate the problems with Roe v Wade. The decision in Roe was based on a constitutional right to privacy – and this suggests that abortion can no more be taxed than gay sex (ie: Lawrence v Texas). On the other hand, there’s no inherent reason why an abortion – a trivial medical procedure in the parlance of Pro-Choicers – is any more constitutionally guaranteed than a botox-injection, tummy-tuck, or tonsilectomy.
When Ross Douthat spoke at Yale last year, I asked him a pointed question on abortion, to which he responded that the problem with abortion in America is the Roe decision, because it puts abortion on a constitutionally-protected pedestal so that nothing can touch it. Policies to limit abortions (say, to the first trimester, as is the law in some European countries) or discourage abortion (through taxation, counseling, or incentives) are perfectly legal in every other developed country in the world; only in the United States is abortion afforded special status as a fundamental right, and it is for that reason it is nearly impossible to implement policies to bring down abortion rates in America.
EDIT: Eugene Volokh extends this discussion to gun rights.
Tags: abortion, deathandtaxes, healthcare