September 13, 2012 | Posted By Wayne Shelton, PhD

The Supreme Court ruled this past June that the Affordable Care Act (ACA), otherwise known as Obamacare, was indeed constitutional. But this ruling only occurred when Chief Justice came over to the more liberal side. However, he made it clear that the basis for its constitutionality could not be the commerce clause but rather the right of the federal government to impose new taxes. That is, the government could not require citizens to buy certain services but they could, via elected representatives, impose new taxes to support those services. On the conservative side, there seems to be the notion that health care itself is a normal market service or product like any other. Requiring someone through the imposition of a mandate to purchase health care is therefore the same as requiring them to purchase broccoli. Though most of us on the liberal side are glad that the ACA was deemed constitutional, it causes us considerable pause to leave just a wrongheaded legal understanding embedded in our public policy moving forward.

Broccoli has many health benefits. It is filled with vitamin A and C, folic acid, calcium and fiber. It may help prevent high blood pressure and colon cancer. And it’s really delicious steamed up as an accompaniment with other vegetables and almost any meat or carbohydrate. In fact I would prefer to spend the remaining time in this blog describing all the ways broccoli can be enjoyed and used to promote health. But my point here is only to say, as wonderful as broccoli is, it is dispensable in one’s diet. Former President George H. W. Bush famously claimed his right to refuse to eat broccoli any longer because he was now president and could do as he wished. He just didn’t like it. And as difficult as I find it to empathize with such a sentiment, I must say, it makes virtually no practical difference either to former president Bush, society and to the marketplace in which broccoli is sold. He will hopefully find other vegetables he finds more palatable or take vitamin supplements, or just hope that his genes help him get to a long life. There are countless market products and services just like broccoli, in terms of being really, really good for you, but if you don’t buy them, neither you nor the rest of society will be harmed.

Because health care is not like not like broccoli, or practically any other market service, it is a real concern to see such a sudden change in the legal mindset at the highest level about healthcare. To start with, if a 25 year-old person in good health and is not on her parent’s health care plan who doesn’t buy broccoli, there are few negative market reverberations. There are enough people, like me, who love broccoli to sustain a robust market for it as a dietary staple. But if that same 25 year-old walks out in front of a car and has a life-threatening accident, she will go to the nearest ER and receive all the necessary care to meet her needs. The cost could be anywhere from a few hundred to thousands and possibly millions of dollars, depending on the severity of her condition and the resources required to treat it. And who will likely get the bill for this? Probably not the patient especially if she has no financial resources. The hospital first of all will take the hit, but also all of us will as the rising costs of health care are passed along in along sorts of ways, including high insurance premiums. Nothing even remotely resembling these adverse consequences would happen in the event of her not purchasing broccoli? What does this say about the nature of healthcare?

In a capitalistic, highly individualistic cultural setting the idea of a service being viewed as a public good is a difficult concept for people to grasp. But if you think about it, healthcare in the current U.S. society is very close to having the status of a public good already. That is, you will get healthcare if you really need it, even if you can’t pay for it. It’s that important, since seemingly no one, not even the most ardent Tea Party zealots would want people dying in the streets (this may not be true for Libertarian supporters of Ron Paul). But what we haven’t done in our country and will not do to date is have the courage and imagination to find a viable way to meet our moral obligation to provide minimal healthcare to everyone in a more rational way, i.e. that does not drive us bankrupt as a nation. Meeting this obligation is both a moral and political quest that is also absolutely essential for the future economic viability of our nation. The narrow legal confines in which healthcare is now construed by right wing judges as a normal market service mischaracterizes healthcare and perpetuates an understanding that forsakes our moral obligations, continues the unsustainable rise in costs and advantages those with vested interests in the status quo.

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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.