Could Congress Tax Abortion?

Members of Congress have toyed with various tax ideas to help pay for health care. So, for instance, some floated the idea of a tax on cosmetic surgery — the “BoTax”? — an idea Professor Bainbridge thinks could alter the political landscape of southern California). This prompted Glenn Reynolds to wonder whether Congress could tax abortion. It’s an interesting question, to which Paul Caron responds here.

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.

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. Indeed, one could argue that his opinion in Gonzales v. Carhart is more consistent with the test articulated in Casey than Stenberg v. Carhart. So I believe the question would come down to whether an abortion tax is consistent with Casey‘s “undue burden” standard.