In response to my post yesterday, Congress Considers "Botax" -- 10% Tax on Plastic Surgery to Fund Health Care Reform, Glenn Reynolds asks: "If Congress can tax plastic surgery, can it tax abortion?" Although there have been various suggestions to tax abortion, a colleague tells me that such a tax would raise serious constitutional concerns. 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.
On the one hand, Susan R. Estrich and Kathleen M. Sullivan have stated: "Whatever position one takes on the decision to [publicly fund abortions], it is surely different than a state policy which seeks to 'encourage childbirth' by taxing abortion. Even assuming that rewards may be appropriate to secure the end of childbirth, punishments should not." Abortion Politics: Writing for an Audience of One, 138 U. Pa. L. Rev. 119, 150 (1989). On the other hand, Yvette Marie Barksdale has noted:
Sometimes the government simply excludes a broad category of activity that happens to include some constitutionally protected conduct. Thus, the government might decide to fund medical procedures but exclude discretionary medical procedures such as cosmetic surgery. The fact that the discretionary category includes non-medically necessary abortions does not mean that the government's failure to fund abortions infringes upon the woman's constitutional right to an abortion. Although the decision harms the woman by denying her funding for abortion, the harm does not result because she decided to have an abortion. Rather, she was denied funding because she chose a discretionary medical procedure, which happened to be an abortion. Accordingly, such a refusal to fund is not really linked to, and thus should not be held to implicate, the constitutional right. [FN172]
[FN172]. An exception here might be where the government intentionally used this more general category as a way of targeting abortion. In such a case, the government's hostility to the woman's right to an abortion links the funding decision to the right and thus would implicate the right. See Minneapolis Star Tribune & Company v. Minnesota Comm'r of Revenue, 460 U.S. 575, 579-580 (1983) (discussing Grosjean v. American Press, 297 U.S. 233, 250 (1936), which invalidated a general Louisiana tax on large newspapers where all but one of the newspapers had “ganged up” on Huey Long and in which the Governor had advocated a general tax as a tax on “lying” newspapers; the Court in Grosjean further stated that the tax was a “deliberate” and “calculated” device in the form of a tax to limit the circulation of information to which the public was constitutionally entitled).
And the Poor Have Children: A Harm-Based Analysis of Family Caps and the Hollow Procreative Rights of Welfare Beneficiaries, 14 Law & Ineq. 1, 54 (1995). Cf. Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. Rev. 480, 531 (1990) ("Measures that increase the cost of abortions, such as an abortion tax, present a trickier problem.).
Update #1: Jonathan Adler responds on The Volokh Conspiracy, Could Congress Tax Abortion?:
My own view is that, under current law, a tax targeted at abortions would be difficult to sustain. Under Casey, states may not impose regulations that place an "undue burden" on a woman's constitutional right to terminate her pregnancy. A law creates an "undue burden" where it has "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Any abortion tax large enough to raise a meaningful amount of revenue would likely increase the cost of abortions sufficiently to constitute an "undue burden" under this test.
Update #2: Eugene Volokh has weighed in with Targeted Taxes on Getting Abortions, Buying Guns, and Exercising Other Constitutional Rights.