One problem with anti-abortion laws is that we can count on the state to use them as a new tool for privacy invasions, surveillance, and control—just as unconditional abortion leads to the debasement of human life. The government of the state of Georgia wants to prove that the first of these slippery slopes exists. (“Georgia Abortion Restrictions Spark New Debate Over Claims to Fetal Parenthood,” Wall Street Journal, August 27, 2022):

Ed Setzler, the bill’s Republican author, said the recognition of fetal personhood is the logical extension of abortion bans. “If at the point of detectable heartbeat we’re going to protect children from the violence of abortion, naturally that protections should apply across Georgia law,” he said.

Democrats and some legal scholars say the law opens the door for any of the dozens of local Georgia prosecutors to charge women with murder for taking abortion pills or traveling to an abortion clinic in another state.

But the state is benevolent and serviceable: Setzler said that pregnant women could be allowed to drive alone with their fetuses on commuter lanes reserved for cars with passenger. But here is the catch:

The state Department of Transportation said the issue would be one for local law enforcement to decide.

According to the Georgia Department of Revenue, parents of an unborn child “with a detectable heartbeat” will be able to claim a personal income tax exemption of $3,000. But there is a catch again:

The department declined to explain how someone would provide proof of an unborn child, or what should happen in the event a woman miscarries after claiming the exemption. The department will answer further questions about the impact of the law on taxes later this year, a spokesman said in an email.

This sort of invasion of the “protected domain” (as Friedrich Hayek called it) around each individual and his property is judged as illegitimate in much if not all the classical liberal and libertarian tradition. A general, impersonal, abstract principle would have to be found that both protects private property and allows checkpoints for women’s uteruses—a tall order, although the proliferation of checkpoints and decline of the Fourth Amendment have gone some way towards this Brave New World. In James Buchanan’s constitutional setup, such a rule would have to obtain, or be capable of obtaining, the unanimous consent of all individuals, which is even less likely. Philosopher Robert Nozick developed a Kantian theory of individual rights as strict constraints against what others, including the state, can do to an individual (Anarchy, State, and Utopia, Basic Books, 1974). It is interesting that both Hayek and Buchanan invoke Kant to buttress their otherwise quite distinct theories.

Whatever the goals of the state, there are barriers it must not cross. If checking women’s uteruses does not cross them, one wonders what would. The state has already breached many barriers, often with approving clamors from the mob.

On May 28, 2014, the Habersham County police in Georgia carried a late-night no-knock raid on a home where they thought a drug suspect would be. The SWAT rammed the door and tossed a flash-bang grenade inside. It landed in a playpen where a relative’s 19-month-old baby was sleeping, disfiguring him. Pardon the macabre joke, but the baby, called Bou Bou, had unfortunately been born 19 months before. No cop was criminally charged, except one who was indicted by a federal grand jury for lying on the affidavit requesting the warrant; she was acquitted. The parents received many millions of dollars in damages and settlements from municipal agencies. (See, for example, Mark J. Perry, “Baby Bou Bou Update, the Toddler Disfigured in a SWAT Drug Raid Based on a Warrant Obtained with False Information, AEI, July 24, 2015; “Ex-Georgia Deputy Acquitted After Flash Bang Grenade Hurts Toddler,” NBCNews, December 13, 2005; or google “Bounkham Phonesavanh.”. (Incidentally, that sort of story, which is not infrequent, suggests that Mar-a-Lago does not represent the most shameful home invasion in American history. Ordinary people get worst.)

Selling drug to adults is a victimless crime because nobody is forced to buy. Readers who have seen my previous post on abortion know that I don’t believe that abortion is always a victimless crime (“Economic Reflections on Abortion,” EconLog, August 8, 2022). The general lesson is that we must be conscious of the permanent danger of coercive government interventions; mission creep is part of the danger. Federalism and the liberty to move to another state attenuate the danger, but don’t eliminate it. And my apologies for the slightly tabloid image I chose for this post. It can’t happen here?

Frightened woman during the interrogation

“According to the Georgia Department of Revenue, parents of an unborn child “with a detectable heartbeat” will be able to claim a personal income tax exemption of $3,000.”

“For purposes of…” is a very important phrase in law. For purposes of tax law, a fetus can be considered a person. This would not estop the state from defining a fetus different for purposes of other statutes.

“The department declined to explain how someone would provide proof of an unborn child, or what should happen in the event a woman miscarries after claiming the exemption. The department will answer further questions about the impact of the law on taxes later this year, a spokesman said in an email.”

Well biologically if you claim the exemption in TY1 by TY2 you will either have a dependent with a social security number or you will have miscarried. So if you’re not claiming the dependent in TY2, at that point the state will know that you either miscarried or were lying.

I don’t suspect they will be sending out 1099-MISC forms for this event. So how will they know? Well there are currently other deductions where the state and federal government takes your word on it, ie there’s no form or anything.  Charitable contributions are one example and if they audit you on that, well, then you’re going to have to show the government that you gave money to the charitable organizations you said you were donating money to which very well might include the church you attend, right? Likewise people can also deduct health care expenses, generally, if they are particularly excessive. Again if audited, you need to show that you qualified for that deduction.

That’s the essence of the income tax, the income tax must necessarily delve into the minutiae of your daily life and in doing so will delve into matters most people would consider ‘private’

The department declined to explain how someone would provide proof of an unborn child, or what should happen in the event a woman miscarries after claiming the exemption.

Proof would be by medical records presumably. As for the second issue, I presume parents can take a deduction for the year during which a child dies.

Democrats and some legal scholars say the law opens the door for any of the dozens of local Georgia prosecutors to charge women with murder for taking abortion pills or traveling to an abortion clinic in another state.

This will not happen — fortune 500 companies would depart en masse if Georgia started prosecuting women who had abortions out of state.

I rather doubt that the state will end up trying to ‘police women’s uteruses’ at all rather than just policing abortion providers.

Well, the article discusses the State of GA’s definition of course, but let’s take a step back and assume that the federal government were to define a fetus as a person. What happens if a US citizen leaves the US and has an abortion in a foreign country?

Recently you can read about a dentist with the name Rudolph who was convicted in federal court of killing his wife in Zambia. Of course the first question is why does the US have jurisdiction over the foreign conduct of a US citizen? The short answer is that as a US citizen you are subject to the GENERAL jurisdiction of the US and the specific jurisdiction of Zambia.

There are multiple jurisdictions and each has its own set of laws, but there is a general concept that a resident of state x is subject to the general jurisdiction of state x no matter where the conduct occurred (the state’s ‘long arm’ jurisdiction) and is subject to the specific jurisdiction of state y to the extent the resident of state x commits crimes there.

Some states criminal statutes may ultimately follow the lex loci delicti and perhaps GA is one of them, but the concept that a resident of GA kills a GA ‘person’ where a person is defined to include a fetus, its not entirely beyond the realm of reason that a GA state court might try to assert a long arm jurisdiction for GA residents getting out of state abortions.

I’m not saying this is the law or that this is the way the law will ultimately evolve, but rather we’re in a situation where the law is clearly in a state of flux and there are legal doctrines which exist which would clearly allow a GA state court to assert personal jurisdiction over a GA resident for crimes committed against other GA persons out of state.

Perhaps the federal courts will have to resurrect the ghost of Judge Taney to dust off his Dred Scott opinion?

Sorry the lex loci delicti is a tangent actually. The lex loci delicti is about whose laws apply to the conduct in question. That is a bit different as to which jurisdiction can or should assert jurisdiction.

but let’s take a step back and assume that the federal government were to define a fetus as a person

A different kettle of fish, but that’s also not going to happen.  There is enough political support in some conservative red states to ban abortion, but nowhere near enough to do so nationally.

Ultimately, Mark, your prediction: “This will not happen — fortune 500 companies would depart en masse if Georgia started prosecuting women who had abortions out of state.” absolutely may be true. Still, as of this writing, the concept of general jurisdiction is still worth noting. As I write this if a person from NJ goes to Las Vegas and engages in prostitution that is lawful in NV, NJ obviously does not prosecute and indeed, as you suspect that could very well play out. Still, the concept of general jurisdiction does underpin the assertion of jurisidiction for the conduct of US residents abroad, ie Foreign Corrupt Practices Act, the concept underpinning fact a US citizen is subject to taxation on worldwide income, etc. This concept does exist at the state level too. If you are a NJ resident you are subject to taxation based on income earned anywhere. States do have a concept called their long arm jurisdiction which does have pracitcal applications in civil lawsuits and it can extend to criminal law too.

Supposing a drug induces irrational behavior in the consumer such as going berserk, would you still claim victimless crime?

Macroul: You mean like alcohol? Or reading Marx?

Point applies. The question whether a particular substance is harmful is separate.

Narcotic drugs are likely not conducive to rationality per se. They are meant to stultify. Alcohol is stultifying if consumed in excess.

That’s why Catholic Church allows alcohol in moderation but disallows narcotic drugs.

This is the fundamental irresolvable conflict regarding abortion.

On the one hand, “Thou shalt not kill” is pretty fundamental. And “Thou shalt not kill helpless, innocent babies for your own convenience”, is even more so, Libertarians, of all people, should agree.

Whatever the goals of the state, there are barriers it must not cross. If checking women’s uteruses does not cross them, one wonders what would.

Bill Burr nailed this conflict on the head, he could be so funny about it because it is so true.

Infrastructure to provide abortions isn’t private. The state licenses physicians and permitted medical procedures,  medical drugs.

“If checking women’s uteruses does not cross them, one wonders what would.”

Of course this invokes the privacy hook that Roe was decided upon. Why was Ginsburg worried about that legal logic?

Privacy doesn’t stop at the uterus. Frankly, it doesn’t matter if its the uterus, the prostate, breast cancer, brain cancer, an STD, or perhaps one might ask on what basis the state would be able to ban gay conversion therapy?

If we take a brief look at traditional federalism in Federalist 45, Madison, writing as Publius notes: “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.”

Now taking a brief glance at the X Amendment, one notes: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Taken together the ‘reserved powers‘ as they are called are also referred to as the ‘police power’ of the state and they can relate to: “Health, welfare and safety” and also used to include ‘morals’

Of course the New Deal has mixed that up and there are things like the federal government’s Department of Health, CDC, Medicare, Medicaid, but ultimately the bottom line is that in general, if we disregard the debate over federalism, which the vast majority of people don’t care one wit about, there exists the concept that the ‘state’ (here being both the federal and state government) can regulate ‘health’

And so the constitutional concept of ‘privacy’ tends to undermine the state’s authority to regulate for ‘health’ generally.

I’d suspect many libertarians would be ok with that concept.

This site uses Akismet to reduce spam. Learn how your comment data is processed.

I've often argued that Fed policy should not try boost equity prices. It's (at least) equally true that the Fed should not try to reduce equity prices. Not everyone seems to agree: Sharp stock-market losses show investors have got the message that Jerome Powell and his colleagues are serious about tackling inflation...

Jean Baechler passed away a few days ago. I’ve written a short obituary for the Wall Street Journal. I’ve tried to highlight the key insight of his short-but-great 1971 book, The Origins of Capitalism: Economic growth, Baechler maintained, is the result of millions of “experiments” by people who act and think ...

One problem with anti-abortion laws is that we can count on the state to use them as a new tool for privacy invasions, surveillance, and control---just as unconditional abortion leads to the debasement of human life. The government of the state of Georgia wants to prove that the first of these slippery slopes exists. (...

The Library of Economics and Liberty

Enter your email address to subscribe to our monthly newsletter:

Or link to existing content