December 5, 2021
by Stephen Stofka
This week the Supreme Court heard oral arguments (Oyez, 2021) in a case called Dobbs v. Jackson that involves a Mississippi law banning abortions after 15 weeks. Current practice is about 24 weeks, the point of viability when current medical technology can keep a fetus alive outside the womb. Two Constitutional lawyers discuss the issues on the National Constitution Center’s podcast We the People (2021). Also this week I was reading about an 18th century British property tax that was based on the number of windows in a home. The more windows the higher the tax. What similarities does the Mississippi law have with a tax?
In 1696, King William III enacted a progressive property tax. Poor people usually lived in homes with fewer windows so the tax was based on the number of windows. There was no tax on a house with up to 9 windows. In the 1750s, the tax on the 10th window was $7.47 per window for all the windows, $75 in current dollars (The National Archives, 2021). In the 1770s, Adam Smith (2009) noted that this was the approximate weekly wage for a mason. A house with 15 windows or more was charged $11.22 for each window so that the marginal increase in tax for the 15th window was $63.72. What did people do? They boarded up some of their windows to avoid some or all of the tax. In an age with indoor fires for cooking and heating, this reduced the flow of fresh air in a home and led to disease and death from asphyxiation. In 1851, the tax was repealed.
A tax is a compulsory payment for the support of government. A state ban on abortion compels a woman to carry a baby to term. Any loss of work income is an economic cost that a woman must bear in support of the state’s interest, using that term in a general sense (Hudson, 2019). The state claims an interest but does not pay a woman for the rental of her womb to perform that service. Is that a violation of the takings clause (Epstein & Peñalver, n.d.) in the 5th Amendment or is a rental of a womb not a permanent taking? When a state leases a building from its owner, the state pays the owner for the use of the building. Is there an implied contract when the state leases a woman’s womb to carry out the state’s interest?
The tiered structure of the British window tax has some similarities to the Mississippi law. The state does not impose a tax on the first 15 weeks of pregnancy. At the 16th week, the marginal effect of the tax is substantial. A woman must leave the state to seek abortion services, seek other intervention or continue with the pregnancy. A woman bears a considerable expense in raising a child. Economists distinguish between the statutory incidence and economic incidence of a tax. The statutory language states which party remits the tax. The economic incidence is who bears the impact of the tax. A tax on cigarettes is remitted by the retailer to the state – that’s the statutory language – but the impact, the payment, of the tax is on the consumer.
Unlike the window tax, the womb tax is selectively applied only to wombs capable of bearing children. Owners of a home in 18th and 19th century Britain could board or brick up some windows to avoid or reduce their property tax. That action could be undone if the owner wanted to pay the tax. A woman can only have her womb removed if she does not want to make it available to the state. If several thousand women were to dump their wombs – or some symbolic semblance thereof – on the steps of the Mississippi statehouse, legislators might understand the impact of this womb tax.
Epstein, R. A., & Peñalver, E. M. (n.d.). The Fifth Amendment Takings Clause. Retrieved December 04, 2021, from https://constitutioncenter.org/interactive-constitution/interpretation/amendment-v/clauses/634
Hudson, D. L. (2019). Substantial government interest. Retrieved December 04, 2021, from https://www.mtsu.edu/first-amendment/article/1615/substantial-government-interest. Constitutional lawyers distinguish three levels of state interests: legitimate, substantial and compelling.
National Constitution Center. (2021). National Constitution Center. Retrieved December 04, 2021, from https://constitutioncenter.org/
The National Archives. (2021, February 01). Window tax. Retrieved December 04, 2021, from https://www.nationalarchives.gov.uk/education/resources/georgian-britain-age-modernity/window-tax/. Note: the 6d per window tax is £.025. I used the Bank of England CPI calculator (https://www.bankofengland.co.uk/monetary-policy/inflation/inflation-calculator) to convert pounds in 1750 to 2020 pounds. A pound today is worth $1.32. Also, see this blog for some fun facts https://sashwindowspecialist.com/blog/history-of-window-glass/
Oyez. (2021, December 1). Dobbs v. Jackson. Retrieved December 04, 2021, from https://apps.oyez.org/player/#/roberts12/oral_argument_audio/25307
Smith, A. (2009). Wealth of Nations. New York: Classic House Books. Smith discusses wages in Part 1, Chapter 10.