Paul L. Caron

Tuesday, July 5, 2011

More on Taxing Abortion

Gerard N. Magliocca (Indiana-Indianapolis), 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. ... 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.

In Taxing Abortion (July 29, 2009), I discussed the views of Jonathan Adler, Yvette Marie Barksdale, Susan Estrich, Andrew Koppelman, Glenn Reynolds, Kathleen Sullivan, and Eugene Volokh on this topic.

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An 11% tax on abortions in NYC (estimated 400,000 abortions last year) would not raise $200 per procedure or yield $80 million annually as so many of these are paid by the taxpayers under various state and local programs.


Posted by: chsw | Jul 6, 2011 1:44:47 PM

So if one is aborting #4-999, should there be an additional fee?

Or should a frequent customer discount apply?

Posted by: Sandy P. | Jul 6, 2011 10:26:10 AM

With liberals forget Natural Law, the right approach is the pragmatic one: a tax based on the earning power of a future taxpayer.

Posted by: Don Fulano | Jul 5, 2011 10:24:41 PM

Is there a difference between inalienable and unalienable rights here? I consider the right to an abortion is an unalienable right granted by government since I do not think that we can consider this unalienable, flowing from God. In fact, abortion is the unalienable right granted by government that trumps the inalienable right of the unborn to life.

Guns is an unalienable right that has been granted constitutionally by government but I may also argue that that it could be an inalienable right of life, liberty and property. The smoking of cigarettes may be considered a inalienable right since we should have the right to consume what we like. And government taxes this.

Posted by: Glenzo | Jul 5, 2011 8:54:36 PM

Why not match it to the loss to the state from revenue from a born person? That way it has a public purpose and does not have to be moral disaproval.

Posted by: jjv | Jul 5, 2011 7:54:16 PM

We already do have an excise tax on firearms-- 11% on rifles. I'd love to see somebody try and leverage that same thing on abortions. Talk about entertainment.

Posted by: Michael | Jul 5, 2011 7:51:22 PM

I think the tax should be set high enough so that the market is controlled by criminals. You can never have too many criminals. Or too much Black Market RU-486.

Posted by: M. Simon | Jul 5, 2011 7:30:32 PM

Make it a rising tax, starting low at conception and reaching onerous levels in the ninth month.

Reasonably related to a valid (per RvW) public purpose?

Posted by: bobby b | Jul 5, 2011 7:20:18 PM

Explain to me how this would be different than a soda tax.

Posted by: Junk Science Skeptic | Jul 5, 2011 7:13:01 PM

For a life-loving state or territory (LA, UT, SD, or Guam), I would think you would want to put in the preamble that you are disclaiming Reasons 2 and 3, which is inviting a Casey undue-burden challenge, and you are specifically doing this as a revenue-raiser and to recover the costs of inspecting clinics so there are no more Kermit Gosnells. Heck, call it the "Kermit Gosnell Safe Clinics Funding Act of 2011." It just might satisfy Justice Kennedy who is, to use a phrase coined by a great man, The Decider.

Posted by: Rhodium Heart | Jul 5, 2011 5:10:37 PM

Excise that a pun???

Posted by: DAve | Jul 5, 2011 3:58:28 PM

I'm not an expert, but it's hard for me to believe this would be constitutional unless other procedures were similarly taxed. But remember the Allan Sherman line . . . good advice costs nothing and it's worth the price.

Posted by: mike livingston | Jul 5, 2011 2:05:29 PM