The Trump Administration Should Halt Tax Breaks for Abortions

July 20, 2020
Washington, DC

Conservatives call on President Trump to direct the Department of Treasury to issue new regulations to clarify that abortions (except when the mother’s life is physically endangered) cannot constitute medical care under §213(d) of the Internal Revenue Code (the Code).

By extension, the IRS should stop considering premiums for medical insurance that covers such abortions to be medical care without complying with the separate accounting requirements under §213(d)(6) for coverage of non-medical care.

The IRS’ abortion distortion dates back to a 1973 decision by IRS bureaucrats, soon after Roe v. Wade, to reinterpret the 1942 statutory definition of “medical care” in the Code to include abortions (Rev. Rul. 73-201 (1973)). This interpretation would have been unthinkable to the 77th Congress that enacted the law, at a time when abortion was illegal in virtually every state. Into the present day, this 1973 ruling allows tax breaks for abortions through the medical expenses deduction as well as through health flexible spending accounts, health savings accounts, health reimbursement arrangements, and other tax-preferred health accounts and tax breaks that incorporate §213(d)’s definition of “medical care”.

The IRS’ treatment of abortion as medical care is wrongheaded and contrary to the law. Firstly, abortion is an elective procedure that has nothing to do with “the prevention or alleviation of a physical or mental defect or illness” as the longstanding governing regulations require, drawn from Congressional intent established in the legislative history (Treas. Reg. §1.213-1(e)(1)(ii)).

Secondly, abortion is primarily and directly for the purpose of destroying the body of an unborn child, who has her own unique DNA. The statutory text, however, encompasses a single body, that is, only the one for whom the intervention is primarily intended (c.f. Morrissey v. United States, 871 F.3d 1260 (11th Cir. 2017), and also includes interventions specific to an unborn child (c.f. Kilpatrick v. Commissioner, 68 T.C. 469 (1977)). Thus, the secondary effects of an abortion on the mother’s body cannot be taken into account as medical care for her.

The Trump administration has gone further than any in recent memory in furthering the cause of life. We urge President Trump to cement this pro-life legacy by ending tax breaks for abortion as medical care.

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