As a practical matter, even if Roe v. Wade is overturned, abortion is not going to be effectively criminalized in the United States. That's because a substantial number of our fellow citizens—arguably a majority, depending on which poll you consult—believe they have a right to an abortion. Not unreasonably: For 32 years the Supreme Court has been telling them so. You can argue, as even many liberal law professors do, that Roe v. Wade is bad constitutional law. But you can't really say that citizens are irrational to believe that they have a right when the Supreme Court tells them they do.
So what should abortion opponents do if Roe is overturned? One idea occurred to me in the shower this morning: an abortion tax. We have taxes, very high taxes, on disfavored behavior—alcohol, cigarettes, gambling. As a society we look with disfavor on drinking alcohol, smoking cigarettes, and gambling; those things, at least taken to excess, are not good for you. But you have a right to do them. The 21st Amendment repealing Prohibition enshrined this in our Constitution. But to discourage people from doing these things we tax them heavily. So why don't abortion opponents call for a heavy tax on abortion? Say, $1,000, which as I understand it is more than the price of an early term abortion. After all, most of the money you spend on liquor or cigarettes goes to the government.
Arguments for: A tax would tend, marginally at least, to reduce the number of abortions. It would signal society's verdict that having an abortion, like drinking, smoking, and gambling, is disfavored behavior.
Arguments against: An abortion tax would tend to be more of a hardship for low-income and disadvantaged people than others. But that's also true of cigarette taxes and beer taxes. And a tax would tend to sanction behavior that abortion opponents want to discourage. But that's true of gambling, too. A tax would give the government a financial stake in perpetuating disfavored behavior. True—but true also of alcohol, cigarette, and gambling taxes. Those deterred by an abortion tax would tend to be those who as parents would have the greatest difficulty in raising children to be responsible adults. Quite possibly true, and something that should be worrisome to everyone.
I take no stand on this. I'm just throwing it out there for discussion. Has anyone proposed this before?
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