by Neil H. Buchanan
Yesterday, I discussed the Dobbs opinion (overturning Roe) not by going back over the now-familiar ways in which it is an embarrassing piece of legal hackwork but by asking how anyone could sign their names to it -- in particular, the supposed elite conservative legal minds that the Federalist Society has been honing and hyping for years.
The short version of that column was: "This was the biggest game of their lives, but they didn't bother to bring their A Game, because they simply don't respect the rest of the world enough even to pretend that they need to justify their power grab." I also suggested another possibility, beyond the Dobbs 5 not bringing their A Game: They might not have one. That is what I argued about Antonin Scalia, and there certainly is nothing that we have seen from any of the current crowd that suggests that they are the pick of any litter.
Today, I want to discuss how this motley crew might respond to upcoming legal challenges to the various ways in which the federal government subsidizes and supports abortion services. To be clear, I am not talking about what the Biden Administration might yet decide to do, including opening abortion clinics on military bases or other innovative responses to Dobbs. I am talking about how current federal law supports abortion in ways that are surely enraging to these theocrats and will surely lead to legal challenges.
This analysis will then lead to an interesting conclusion: recognizing the existence of what are in fact subsidies for abortions ought to require recognizing the existence of subsidies for other things, most particularly federal support for organized religion. It is a nasty little conundrum. My prediction, however, is that the Court will simply not care and will instead do what it wants, consistency be damned.
In yesterday's column, I teased today's analysis by offering this: "Tomorrow, I will discuss an implication of the Court's no-longer-even-plausibly-deniable embrace of theocracy (more accurately: Christian nationalism) in the context of 'state support' of abortion through various employment and tax laws." The spark for today's analysis is an excellent news article (not an op-ed) in The New York Times last weekend, "The Federal Government Subsidizes Abortions. Will That Last?" by Ron Lieber and Tara Siegel Bernard.
The columnists note a hiding-in-plain-sight aspect of employee benefits and tax laws: abortion is a medical procedure, medical procedures are covered by health insurance and other provisions, and health insurance and other medical spending are subsidized by the tax code. Not everything is covered, as the article notes, and the writers pointedly end the piece with a short explanation of the Hyde Amendment, which bans federal direct funding of abortions, "except when the pregnancy resulted from rape or incest or causes a life-endangering condition for the woman." (Remember when even the crazies had at least that much decency?)
But the basic story here is that various aspects of benefits and tax laws make it cheaper to get an abortion than it would otherwise cost, at the expense of the federal government (and to you and your employer as well). Most obviously, for those who are lucky enough to have an employer who provides some version of pooled health insurance (reducing the cost of health insurance massively, compared to individual purchases on private markets), that employer-provided perk -- which most definitely is part of an employee's compensation and thus their income -- is excluded from gross income, even though the employer is permitted to deduct the cost as an "ordinary and necessary" business expense (which it most definitely is). It is thus treated as deductible to the payer but not includible to the payee, unlike regular wages and salaries. In short: a subsidy.
So if you have employer-provided health insurance, and it covers abortion services, the federal government is paying part of the costs of your abortion. In addition, if your medical expenses exceed 7.5 percent of your income in a given year, you can deduct the excess medical spending above that threshold. So, for example, if you were already above the 7.5 percent threshold and you paid an additional $2000 for a medical procedure known as an abortion, you would (if you were in the 32 percent tax bracket) get a refund of $640 from the federal government, turning your $2000 abortion into a $1360 abortion.
The same goes for flexible spending accounts, which do not even have the 7.5 percent hurdle. Note that this applies not only to direct medical expenses but also to "related travel expenses." There are also health savings accounts for which the logic is the same.
The Times article, beyond listing and ably describing what the various abortion subsidies are, offers two additional points. Most importantly, all of these not-hidden subsidies are subject to changes in federal law, so if (or when, in my view) the Republicans turn the country into a one-party autocracy, all of the relevant statutes can be changed in accordance with Christian theocratic dogma. For now, however, the Republicans do not have the power to end these things legislatively.
Second, the article ends with this deliciousness: "Some federal employees are now pressing the Biden administration to give all such workers paid time off — that doesn’t come out of sick or vacation pay — to travel for abortions." In short, there are ways to use employment provisions to make abortion less burdensome and less expensive. This only raises the stakes in the fight by Republican-dominated legislatures to prevent their citizens from traveling to other states. It would be horrifying enough in their minds if people crossed state lines to get abortions, but they would view it as so much worse if the "baby killers" were being given paid time off to do so (and deducting the travel expenses).
The question that I want to ask, however, is not what might happen legislatively but what could happen in the courts. What if a Christian theocratic group decided to challenge the various abortion subsidies by saying that they amount to federal payments for murder? What if they argued that donations to charitable groups that are now helping women get abortoins should be disallowed, because the deduction for charitable donations is also a subsidy that sends federal money to people who use it to enable more abortions?
In tax circles, these are routinely referred to as "tax expenditures," because even though they are politically labeled "tax breaks," they have exactly the same impact (on people, as well as on the federal deficit) as direct expenditures. It does not matter if the federal government gives me $640 by sending a check with "for an abortion" on the Memo line or reduces my taxes by $640 when I deduct the cost of my abortion. Either way, that discount is making me financially better off, at a cost to the Treasury.
The problem is that recognizing the true nature of tax expenditures would be explosive. In my basic tax course, I always anticipate the discussion of the charitable donation deduction, because it involves having the students read 1983's Bob Jones University case, in which the Supreme Court held that a fundamentalist Christian university could be deemed "not charitable" (and thus lose its status as a 501(c)(3) organization, making donations to the university no longer deduction under section 170). Why? Because BJU had a rule by which students would be expelled for engaging in interracial marriage or interracial dating, or even for arguing that the rules should be changed to allow interracial marriage or dating by students on that campus.
The Court had no problem seeing that the charitable deduction is a way to shovel federal money to support a racist organization, holding that it is unacceptable for the federal government to subsidize racism via the tax code. Frustratingly, that case has never been expanded and applied to other social cancers like sexism, and it now is largely viewed as having been limited to its facts. (Not quite, but close.)
But what if people started to convince this Supreme Court to revitalize the tax expenditure idea in a reactionary direction, arguing that abortion-related subsidies violate the Constitution for any of a number of tendentious reasons? What happens when we start to say that the federal government cannot directly spend money on something and that it also cannot effectively spend money on something? "Come on," I hear someone like Josh Hawley saying, "We all know that these provisions amount to having hard-working taxpayers' money spent by the government on things that they abhor."
Well, that is a good point. The Supreme Court has so radically cut back Establishment Clause jurisprudence that it basically says that the government only establishes religion by funding religion (not by, for example, having its employees pray at school events in coercive ways). We should start to look at where the government is giving churches money. Where is that happening? Oh, look over there! Note also that religions and their supporters consider losing tax-exempt status to be a version of "the death penalty," because people make fewer nondeductible contributions than deductible contributions. Tax expenditures for religion are large, and they are ubiquitous.
The Supreme Court has never adequately explained why it is able to understand that not-explicit subsidies are nonetheless subsidies without drawing the obvious conclusion that 501(c)(3) status for religious institutions violates the Establishment Clause. It is form-over-substance thinking of the worst kind, because the formal cover story is so transparently facile.
Will the Supreme Court majority that would never in a million years recognize that Internal Revenue Codes sections 170 and 501 amount to a direct subsidy to religious organizations nonetheless declare that various other tax expenditures illegally support abortions? Let me answer that question with another question: Does this version of the Supreme Court seem particularly interested in intellectual, moral, doctrinal, or any other kind of consistency? As many people have noted, the day after the Court wrote its attack on states' power in the New York gun control case, it wrote its paean to states' power in Dobbs.
So yes, why not say that the government cannot subsidize something that Christian nationalists hate even while it subsidizes religion just as directly? I have no doubt that their workaround will have something to do with their assertion of a religious belief as a fact; that is, they will repeat their view of when life begins and then say that that supersedes all else. Once they start cherry-picking, why would they care to be principled?
I hope that all of our readers enjoy the weekend. And remember the Sabbath.