April 5, 2012 | Posted By David Lemberg, M.S., D.C.

Last week's historic three days of arguments before the Supreme Court on the merits of the Affordable Care Act provided many head-scratching moments. Those naive enough to believe that the case was actually going to be considered on constitutional grounds (this being the Supreme Court, after all) were rudely awakened to an apparent actual agenda of partisan politics and corporate interests.

Broccoli was a key theme, startling the 50 million Americans who may be able to purchase green vegetables at the local market but are unable to purchase badly needed health insurance. The welfare of health insurers was a second prominent theme, providing concrete evidence to those who posit that our nation is no longer a government of the people, but rather a "government of the corporation".

The outrage has been profound, including Op-Ed pieces in The New York Times, featured articles in The New Yorker, and commentary in the New England Journal of Medicine.

First, the produce. During the second day of arguments, Justice Scalia attempted to define the market for health care. He said ". . . you define the market as food, therefore everybody is in the market; therefore, you can make people buy broccoli." Chief Justice Roberts picked up the theme as easily as if he were choosing a ripe cantaloupe at his local farm stand. Roberts informed us that "a car or broccoli aren't purchased for their own sake, either." Broccoli is purchased to cover the need for food, we were sagely advised.

But the justices severely missed the important points, and the broccoli red herring (mixing metaphors) suggests a grave lack of understanding of the basic underpinnings of economics. Buying broccoli is nothing like buying health insurance. When 10,000 people, for example, choose not to buy broccoli for dinner, the overall price of broccoli may come down due to supply-and-demand curves. Too much supply of broccoli drives down the price. But when 10,000 people choose not to purchase health insurance, many of them may require emergency room services later on for which they are unable to pay. These revenues must be recovered and the costs of ER services are relentlessly driven upward. In another example, the health of those 10,000 uninsured persons is likely to deteriorate over time as a direct result of a failure to obtain regular medical check-ups. Many studies have demonstrated such a relationship. An unhealthy populace weakens in countless ways both our national polity and our gross domestic product. Paul Krugman's New York Times article, Broccoli and Bad Faith, pointed out additional concerns.

The choices of anti-broccoli consumers have none of these dire impacts. The analogy was not only poorly chosen, but cruel. The Affordable Care Act will enable millions of Americans to obtain medical services which are presently out of reach, to their detriment and society's loss. Why would Supreme Court justices be seemingly purposefully obstructive?

We'll continue this discussion in an exploration of the well-being of the health insurance industry.

The Alden March Bioethics Institute offers graduate online masters in bioethics programs. For more information on the AMBI master of bioethics online program, please visit the AMBI site.

1 comments | Topics: Bioethics and Public Policy , Bioethics and the Law , Bioethics in the Media , Doctor-Patient Relationships , Ethics and Morality , Health Care Policy , Health Insurance


Michael Orenstein

Michael Orenstein wrote on 08/14/12 7:26 PM

It is simply politics as usual that prevented the funding of the Affordable Care Act from having originally been called a tax, although it more closely resembles a fine. Generally, a tax would apply equally to all, but the penalty or "tax" is only applied to those who choose not to buy insurance, and thereby are "taxing" the system by having others pay more. The provision of health care to all is a basic right, and the only major Western industrialized county not to explicitly recognize that fact had been the United States. The Commerce Clause has been broadly interpreted for a long time in allowing Congress to pursue a progressive agenda. Attempts to scale back the reach of Congress, and resort to "Originalism" in interpreting the Constitution, represents a trend started in the past two decades, by a Supreme Court packed with ideologues.
The decision affirming the constitutionality of the act was a rare victory for the powerless, in an age of escalating income discrepancy. The American people must re-affirm their desire to uphold and fully implement this law, and eventually improve it, by rejecting the philosophic dogma that all government spending is bad. Given that Mr Romney has declared repeal of the Affordable Care Act as his first priority once elected, the choices posed by the upcoming election could not be more clear. All Americans should get out to vote this November, and make their voices heard.

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BIOETHICS TODAY is the blog of the Alden March Bioethics Institute, presenting topical and timely commentary on issues, trends, and breaking news in the broad arena of bioethics. BIOETHICS TODAY presents interviews, opinion pieces, and ongoing articles on health care policy, end-of-life decision making, emerging issues in genetics and genomics, procreative liberty and reproductive health, ethics in clinical trials, medicine and the media, distributive justice and health care delivery in developing nations, and the intersection of environmental conservation and bioethics.