The Supreme Court is not the nation’s only battleground over abortion. Some state and federal lawmakers want to fight that war on another front: The Internal Revenue Code and state tax systems. But is tax law an appropriate place to decide whether a fetus is a child?
Those on both sides of the abortion issue await the Supreme Court’s ruling in Dobbs v. Jackson Women's Health Organization. The decision that could weaken or overturn Roe v. Wade was the subject of a leaked draft opinion in May and is likely to be handed down within the next month.
About half the states are ready to ban entirely or effectively prohibit abortion if the High Court overturns Roe. But some politicians are not waiting for the Supreme Court.
Those lawmakers are trying to broaden the tax code’s definitions of “qualifying child” to include a fetus. If the courts upheld such definitions, it could make it easier for judges to ban abortion nationwide, which is the goal of many politicians on the political right.
There would be nothing new about federal law defining “child” in multiple ways. For example, when it comes to protecting children’s online privacy, a “child” is an individual under the age of 13. Laws prohibiting child abuse are based on the age of 18. States use different ages to permit the purchase of an alcoholic beverage or a gun, or to get a driver’s license.
Similarly, the tax code defines “qualifying child” in slightly different ways for tax expenditures such as the Earned Income Tax Credit, the Child Tax Credit (CTC), or the Child and Dependent Care Credit.
None define “child” as an unborn fetus.
But here in Michigan, the House approved a $200 tax credit for the unborn last month. The bill would make the credit available to a qualifying child that is a fetus and has “completed at least 12 weeks of gestation as of the last day of the tax year and that has been under the care and observation of a physician since at least 12 weeks of gestation.” Separately, the bill refers to a fetus as “an individual organism of the species Homo sapiens at any time before complete delivery from a pregnant woman” which would include a fertilized egg, or embryo.
A similar bill, called the “Child Tax Credit for Pregnant Moms Act,” was introduced in the US Senate by Republicans Mike Lee of Utah and Steve Daines of Montana. A companion bill was introduced in the House by more than two dozen GOP lawmakers. Both bills would allow pregnant women to claim the nonrefundable portion of the Child Tax Credit for their unborn children.
Lee says the idea is to “help protect life, support parents, and reduce the number of children born into poverty.” Lee and Daines opposed Democratic efforts to extend the increased CTC that expired at the beginning of this year.
Their bill defines a qualifying child as “an individual of the species Homo sapiens, from the beginning of the biological development of that individual, including fertilization, until the point of the earlier of being born alive or death.’’
Under the proposed legislation, a woman also could claim the CTC in the taxable year that she miscarries or delivers a stillborn infant. But the bill would deny a credit in the event of a terminated pregnancy, with exceptions for ectopic pregnancies or to prevent the death of a pregnant woman. Even with those exceptions, the credit would be denied if the attending health care provider acts “within the scope of employment with, self-employment as or with, or volunteer service for, an abortion center.”
Imagine, if you can, the IRS auditing the circumstances under which a woman terminates a pregnancy and her ability to claim the credit.
If the concern of the bill’s sponsors is to support pregnant women and families, they could also back efforts to create a federal paid family leave program or support the restoration of the 2021 expanded and advanced CTC. Or they could back their Republican colleague, Utah Senator Mitt Romney, who has proposed a monthly family allowance. They could go a step further and allow a tax deductions for surrogate pregnancies, which can cost upwards of $100,000.
But Michigan’s bill and the federal Child Tax Credit for Pregnant Moms Act are classic message bills, designed to tell voters that bill sponsors oppose abortion. And they use the tax code to define life, and parenthood, on lawmakers’ terms.
We are in the midst of a major national debate over these questions, in the courts now and perhaps in Congress in coming years.
But the tax code is no place to have it.
The Tax Hound, publishing once a month, helps make sense of tax policy for those outside the tax world by connecting tax issues to everyday concerns. Have a question or an idea? Send Renu an email.
