Megan McArdle apparently believes she has liberals who support broad federal powers dead to rights:
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? I don’t want to hear any arguments about the social side: how necessary abortions are, how women would just have terrible back room abortions, how tragic this might be for women forced to carry a child to term. Nor do I want to hear any arguments that this doesn’t involve interstate commerce, as of course abortions are frequently purchased across state lines, while in many places, it is illegal to buy insurance from other states. Presuming that Congress is agreed that abortions are bad, and they want to discourage them, why shouldn’t they be able to use their taxing power to enact a ban that they could not enact more directly?
4) If yes, they can, how long do you think it will take before Republicans enact one?
As with most slippery slope arguments, this isn’t very convincing. Indeed, it’s a particularly weak example:
- This isn’t actually a hard question to answer. Congress can’t do this because it would violate the Fifth Amendment. Congress cannot use its taxation powers solely for the purpose of abrogating a fundamental right — the policies described in #1 and #2 would be unconstitutional just as it would be unconstitutional for Congress to use its spending and taxation powers to abridge speech based on its content (even if it’s not clear that the purpose of the tax was to inhibit speech per se.) In addition, given the entrenchment of “reverse incorporation,” I would also argue that such a policy would violate the 14th Amendment’s guarantee of equal protection to women.
- At this point, McArdle might respond, “but what if Republicans appoint enough justices to overturn Roe v. Wade and hold that the 14th Amendment doesn’t prohibit gender discrimination?” Well, yes, then in that case Congress would have the authority to ban abortion, whether directly or indirectly. To which I would then respond, “your point being?” Congress has the power to enact an innumerable number of policies I consider abhorrent. That’s politics. To deny Congress essential powers because it might do something stupid with them would be akin “to wish[ing for] the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.”
- If I were a conservative who liked to talk about “federalism,” I personally would avoid bringing up hypotheticals about abortion, because it’s one of the best examples of the eternal fact of American politics that nobody actually cares about federalism.
- And as it happens, the recent ad hoc arguments about the unconstitutionality of the mandate are an equally excellent example. Not only was this alleged affront to the Constitution a mainstream Republican position until 2009, many Republicans still believe that the federal government should use its authority to compel people to purchase retirement annuities from private companies.
- On the last question, Republicans would not enact these hypothetical policies. Abortion bans, historically, have been able to stay on the books because anti-choicers don’t have the clout to get them enforced in a way that would prevent affluent women from obtaining safe abortions in hospitals. You’d have an easier time passing an outright national ban than a tax heavy enough to make abortion a near-impossibility for all but the wealthiest women. And in some hypothetical future universe where such a policy could pass, the fact that some liberals argued that Congress didn’t have the authority to enact a mandate to purchase health insurance would do nothing to stop it from passing anyway.