Sachs: Abortion, Tax, And Wayfair

Stephen E. Sachs (Harvard; Google Scholar), Abortion and the Wayfair Case:

Yesterday in my conflict of laws class I taught South Dakota v. Wayfair, the 2018 case which lets states force out-of-state sellers to collect and remit use taxes. This morning I wondered why it hasn't been invoked more in the debates over interstate restrictions on abortion. ...

Wayfair might scramble current debates over abortion pills like mifepristone. Suppose an out-of-state entity—a pharmacy, an abortion-rights nonprofit, etc.—ships abortion pills to a user in a state where abortion is illegal. Right now the Supreme Court is considering a case asking whether this use of the mails is illegal under the Comstock Act (though it might well be resolved on standing grounds instead). And a state that made such shipments illegal might have trouble enforcing its laws across state lines; one state's "penal judgments" typically aren't enforced by another, as a longstanding exception to judgment recognition.

So what if the state follows the Al Capone strategy and uses tax law instead?

Say that Alabama imposes a use tax on mifepristone, which it would ordinarily require the user to pay, but which it also requires the provider to report, collect, and remit. There'd be a sufficient nexus, insofar as a sale is attributable to its destination. The tax would apply equally to in-state and out-of-state mifepristone providers, eliminating any claim of discrimination against interstate commerce. And while the Court in Wayfair emphasized the amount of business being done, it didn't endorse a strict minimum of how many shipments are needed to satisfy the commerce clause; after all, why should an out-of-state provider be allowed to evade a tax which an in-state provider would be obligated to pay? (The other parts of the dormant commerce test, derived from the Complete Auto case, could likely be satisfied too; and there's no rule against taxing illegal activities—cf. how they got Capone.)

If a state did tax mifepristone, it could probably get that tax enforced. ...

The point of all this isn't necessarily to outline a strategy for restricting abortion, but to note some reasons why we should feel less confident about Wayfair! It's very strange that an out-of-state actor might be obliged to look up and follow other states' tax laws, reporting on transactions and so on, even if we think those states lack power to regulate the actor in general. It's just that the strangeness is easy to miss when the issue is competition between online and brick-and-mortar purveyors of office supplies, and a lot easier to see when the issue is having to report your shipments of abortion pills (names, addresses, etc).   [S]o long as each state can require out-of-state actors to collect and remit taxes, each state can further entangle itself in the abortion debate too.