Does Taxation Have Limits?

Could Congress limit abortion via an onerous tax?

Megan McArdle has an interesting thought experiment, inspired by the debate over the health insurance mandate.

1) Can Congress enact a $50,000 tax on second term abortions?

2) Can Congress enact a $50,000 tax increase, which is then rebated to anyone who does not have an abortion?

3) If not, why not?

Thus far, the plausible answers to 3) include arguments that this would constitute “an unapportioned direct tax” and/or an undue burden on a woman’s Supreme Court-granted right to abortion.    No one, interestingly, has argued that a $50,000 tax would be excessive.

FILED UNDER: Quick Takes, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Robert in SF says:

    I thought second term abortions were limited to certain cases (life of mother, etc.)…So is this scenario only for those cases?

    A wrinkle in this case, although not around the nature of the amount of the tax, is the nature of the confidentiality of the medical procedure.

    In thinking while writing this comment, how would the government be able to charge the patient for the procedure without breaking the doctor/patient privilege? Would the government directly tax the patient, as your scenario plays out? If so, how do you prove you didn’t have an abortion?

    Or would the doctor be charged for each abortion (a la sales tax) and pass that on to the patients?

    This is a bad example for the health insurance mandate/tax/fine arrangement. Could you pick a good analogy, so as to debate the merits of the approach instead? Perhaps based on the purchase of something rather than a service?

    As for the “Supreme-court granted right”, I didn’t think abortion was a right granted by the courts, but existed as a natural right that the government cannot take away….sort of the like the right to speech or religion or others that exist in nature…But in case it wasn’t obvious: IANAL.

  2. James Joyner says:

    Robert:

    It was articulated as an outgrowth of the Constitutional Right of Privacy, found hiding in the shadows of other rights in a 1965 case called Griswold vs. Connecticut, and extended to abortion in Roe vs. Wade in 1973. It had never previously been thought to be enshrined in the Constitution of 1787.

  3. sam says:

    Can we generalize that?

    1) Can Congress enact a tax on the exercise of a fundamental liberty guaranteed to us in the Constitution?

    2) Can Congress enact a tax increase directed at the exercise of that fundamental liberty, which is then rebated to anyone who does not exercise that fundamental liberty?

    3) If not, why not?

  4. James Joyner says:

    Sam:

    Right. But some of us think that deciding whether to buy a product on the open market — and the right not be to forced to buy products we don’t want — is a wee bit more fundamental than the right to kill a healthy baby.

  5. sam says:

    I think you’re loading the dice with “healthy baby.” But I can see your point (even if I don’t agree). I would say, though, that the Constitution gives the federal government the right to force you to buy something you might not want via the Militia clause and the Militia Act of 1792. I know, I know. This is different from the health insurance mandate, but I only throw it out to head off those who might be prone to argue that no way can the federal government force, etc. Yes, way. Moreover, we have to realize that the states do have the right to force you to buy auto insurance (and in Massachusetts, health insurance) for example. Now, and once again, this is not the same as federal health insurance mandate, but, once again, I offer this as a counter to those who would argue that forcing us to buy insurance is beyond the pale in this country. It’s not, at least as far as the states go. Government-compelled purchase of insurance is not an alien concept.

  6. James Joyner says:

    I say “healthy baby” because 1) that’s what most abortions are and 2) terminating a pregnancy where genetic testing has revealed severe abnormalities is a different kettle of fish.

    Auto insurance is a different matter entirely, in that it’s linked to the regulated privilege of driving. We’ve recognized, since the earliest days, that the huge externalities of driving allow regulation.

    Conversely, “being alive” is considered an inalienable right, not a privilege, and attaching conditions to it is more problematic.

  7. sam says:

    “Conversely, “being alive” is considered an inalienable right, not a privilege, and attaching conditions to it is more problematic.”

    So is liberty, yet we’ve had the draft, which is a form of government-sanctioned involuntary servitude, but constitutionally-allowed. And, btw, now that I think of it, don’t you find the idea that the government can force young folks to give up x years of their lives constitutionally permissible, but requiring those same young folks to purchase health insurance not permissible a bit discordant? (Not an argument for the mandate, just an observation.)

  8. Yes, but I’m opposed to the draft as well.

  9. ratufa says:

    So, maybe the thing to do instead of of mandating insurance would be for the government to change the Emergency Medical Treatment Act so that hospitals and ambulance services would no longer be required to provide emergency treatment to people who don’t have insurance or the ability to pay. This would meet the objections about the government unconstitutionally requiring this or that.

    I’m not actually proposing this, mind you. But, I suspect that many of the objections one hears from various quarters about how the insurance mandate is forcing healthy, low-risk people to buy insurance would be a bit muted if the law was changed in this way. And, to be snarky, the more libertarian-minded folks would certainly have no objection, since moralizing about people suffering because of bad decisions is one of their favorite pastimes.

  10. Alex Knapp says:

    It had never previously been thought to be enshrined in the Constitution of 1787.

    That’s true. But mostly because the Ninth Amendment was adoped in 1791.

  11. mantis says:

    “Second term?” Do you mean someone’s second pregnancy, or are you just unfamiliar the terminology? Pregnancies are often thought of divisions of time called trimesters, but a “term” means, basically, full gestation (i.e. a 37-week pregnancy is “at term”). There is no “second term” in a pregnancy.

    But, you know, details. Those of us familiar with your work know those aren’t all that important to you.

  12. mantis says:

    I say “healthy baby” because 1) that’s what most abortions are

    Bullshit. Most abortions remove an embryo or very early fetus. These are not “healthy babies.” They aren’t babies at all. And nature gets rid of way more of them than people do through abortions.

  13. Alex Knapp says:

    As for the questions themselves, are we asking from a legal perspective, a policy perspective, or a philosophic perspective? Because that makes a difference in how one should answer.

  14. tom p says:

    “Conversely, “being alive” is considered an inalienable right, not a privilege, and attaching conditions to it is more problematic.”

    JJ, not saying this is the final word, but I am always troubled when people invoke inalienable rights.

    From: http://wiki.answers.com/Q/What_are_'inalienable_rights

    “”inalienable rights” are those rights that can only be transferred with the consent of the person possessing those rights. ”

    So… the death penalty offends the Constitution, the Declaration of Independence, etc (presuming, of course, that most of those executed would have chosen an alternative form of punishment). Just saying, “inalienable rights” are transgressed all the time and a lot of people have no problem with that… until it is their “inalienable rights”.

  15. Tano says:

    “…the right not be to forced to buy products we don’t want… ”

    I am consistently amazed that so many folks cannot realize how inappropriate this framing is. Health insurance is not simply another product. To pretend that it is, is the root of a lot of misunderstanding.

    Healthcare is given, when needed with urgency, to anyone and everyone who requires it – irrespective of their ability to pay, or their ownership of any insurance. This is a matter of law – and beyond that, a fundamental moral principle shared by most human societies. We simply do not allow people to die on the street in front of us – we will give them treatment.

    This moral tendency of ours does not fit very well into the strict, rational, libertarian economic view of the world. There is this seemingly irresistible need, for those like James who seem to be locked into those models, to see health insurance as another product, like a plasma TV. But we do not give out TVs to all that need them. Every human being, at least every American, is given, however, the protection of medical care when urgently needed, irrespective of finances.

    This may be irrational, it may be confounding factors in the neat and clean economic models, but it cannot be ignored.

    Mandated health insurance is the flip side of this fact, that the ill will be treated. All citizens need to contribute to the cost of care, since all benefit by the umbrella of care.

    Opposition to the mandate is nothing more than special pleading for free-riders.

  16. James Joyner says:

    @Tom P

    I’m using the language of the Declaration. “Life, liberty, and property” are among them, as I recall. All of them can be taken upon due process of law for criminal conduct.

    @ Tano

    I don’t dispute any of that. Not only don’t I advocate going to a “let ’em die” policy, I fully understand that our culture wouldn’t support it. That a problem exists doesn’t mean government can impose unconstitutional remedies, however.

    Frankly, the ability for everyone to buy into Medicare makes much more sense — and would obviously be within the constitutional power of Congress as we’ve understood it in recent decades — than the present remedy.

  17. jpe says:

    The thought experiment isn’t really relevant. On the one hand, we have enumerated powers: things we know the state can do. On the other hand, we have rights: things that the government substantially burden. We’re concerned w/ the middle: things the federal government is precluded from doing, but things the Constitution doesn’t clearly say it can’t do.

    McCardle asks the completely wrong question: we know the government can’t use the tax power to abrogate rights, but that’s not what is at issue here. The relevant question is whether the goverment can use the tax power to do things that don’t offend rights but aren’t otherwise OK as an enumerated power.

    A lot of bloggers unfairly take flak for being lightweight, but in McCardle’s case it’s pretty much justified.

  18. jpe says:

    That first para is full of typos. Let’s try again:

    The thought experiment isn’t really relevant. On the one hand, we have enumerated powers: things we know the state can do. On the other hand, we have rights: things that the government can’t substantially burden. We’re concerned w/ the middle: things the federal government isn’t precluded from doing, but also things the Constitution doesn’t enumerate as an OK exercise of power.

  19. jpe says:

    Opposition to the mandate is nothing more than special pleading for free-riders.

    The only question here is whether the constitution permits the federal government to prohibit free riding. I don’t think that it does.

  20. mantis says:

    I’m using the language of the Declaration. “Life, liberty, and property” are among them, as I recall.

    I assume you mean the Declaration of Colonial Rights and not the Declaration of Independence. They changed it to “Pursuit of Happiness” for the latter.

  21. jpe says:

    That last sentence re: McCardle, btw, was unnecessarily mean. My apologies.

  22. tom p says:

    >”I’m using the language of the Declaration. “Life, liberty, and property” are among them, as I recall. All of them can be taken upon due process of law for criminal conduct. ”

    JJ, I know you are, but my point is that there is no such thing as an “inalienable right” in this country (assuming you agree with the definition I posted)

  23. wr says:

    Jammes — I’m still struggling with the basic tenets of libertarianism. From your postings here it seems that you believe all people should be completely free to live their lives as they choose, except for women who should be forced by the government to bring any pregnancy to term if it doesn’t directly endanger their lives.

    Are there conditions in your free society where men should also be slaves to the state, or does this just apply to women?

  24. James Joyner says:

    @mantis: I’m just saying you’re using the word differently than it is used in this sort of conversation. Neither life, liberty, property, nor the pursuit of happiness are inalienable in a dictionary sense.

    @wr: It’s an inescapable biological fact that women carry babies and men don’t. But no one really doubts that fetuses in the 2nd trimester are human beings. And government exists to protect citizens from external harms.

    That’s not necessarily a libertarian position. Many libertarians are radically pro-choice. And I’m willing to grant leeway in the case of very early term pregnancies and fetuses that are horribly damaged.

  25. Anna says:

    Are you just having fun debating or is this for real? Is any of you, debating this issue, a woman? I didn’t think so.

    Because if you were, and you had children of your own, you would know that such choice is A VERY DIFFICULT ONE to make. Both spontaneous abortions (I had 4) as well as the induced abortions leave scars for the rest of the woman’s life, as any person who had either one will tell you. This is not like going to the store and trying to choose between skim milk or fat milk. What do you tell those who dealt with illnesses requiring teratogenic medication? They must lie in the bed that fate gave them? Or the bed that the government makes for them? Leave pregnancy and abortion to the women, be there to support those you get pregnant when you do, and all will be well.

  26. Geoff says:

    Anna, stop focusing on abortion and focus on what the thought experiment is trying to get at.

    In the health care debate, the government is trying to utilize a tax to get around restrictions. So the experiment is “what if government used this in other areas?”

    “Roe v. Wade…whatever. I’m going to tax it out of existence.”

  27. Anna says:

    OK, if you want generalization, here is my input:
    1. Taxing something means putting restrictions, that is, not everybody will be able to afford that something, since one must pay (some arbitrary, extorting?) taxes associated with it. And did I read that no one said anything about the tax tag? $50 000! That is just an outrageous ploy: put an exorbitant price tag so that in the end it still is so high that certain services in healthcare becomes unaffordable by default.

    2. As someone mentioned above, only women carry babies, so putting a tax on something that is biologically discriminating, is very incorrect. It’s taking steps backwards with respect to the equality between males and females. We are still playing catch up with respect to income (70 cents women/ $1 men) in same job situations, and more women live in poverty than men. Let’s then add some taxes on child-baring women, shall we? Oh, even better, let’s tax all those who masturbate.

    3. I think a lot more accountability on how tax money is spent goes a long.

  28. Michael says:

    I’d say no to both #1 and #2, but then again I’m a liberal Atheist who opposes the individual mandate, so that’s not really surprising.

    I say “healthy baby” because 1) that’s what most abortions are and 2) terminating a pregnancy where genetic testing has revealed severe abnormalities is a different kettle of fish.

    I don’t see how, unless you believe that severe abnormalities reduces the quality or quantity of rights of a citizen, or somehow reduces the baby from “human” to “sub-human”, and therefore not possessing rights at all.

    Frankly, the ability for everyone to buy into Medicare makes much more sense — and would obviously be within the constitutional power of Congress as we’ve understood it in recent decades — than the present remedy.

    Or a single-payer system with universal coverage, which is ultimately where this is all going to end up. Ironically, by killing off every avenue for a sustainable private-sector solution, the Republicans are forcing us into the very situation they claim to be most opposed to.