Wednesday, July 29, 2015

Health Reform will not Lead to Mandated Broccoli

It's Thanksgiving in the year 2016. The table is set. There's turkey, sweet potatoes, and, of course, government-mandated broccoli. Opponents of health reform warn that this scenario, or something like it, could await us if the Supreme Court upholds the health reform law. Are their fears warranted? The answer is no.

Health Reform will not Lead to Mandated Broccoli

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It’s Thanksgiving in the year 2016. The table is set. There’s turkey, sweet potatoes, and, of course, government-mandated broccoli.

Opponents of health reform warn that this scenario, or something like it, could await us if the Supreme Court upholds the health reform law. Are their fears warranted? The answer is no.

The issue involved is the constitutionality of the law’s individual mandate, which obligates everyone to have health insurance or pay a penalty. Congress found its power to impose that requirement in the Constitution’s commence clause, which authorizes it to regulate commerce “among the several States.”

The Supreme Court has tended to view that power broadly, permitting Congress to impose a range of restrictions. In 1942, the Court even went so far as to let Congress prohibit farmers from growing small amounts of wheat for their own use, since this practice could affect market prices.

Opponents say the mandate in something new. The laws that the Supreme Court has upheld up to now regulate activity of one sort or another. The mandate, on the other hand, regulates inactivity. It denies you the ability to remain inactive in the insurance market.

But is there really such a difference? Congress’s power to regulate activity is extremely broad. If it can prevent you from growing wheat for personal use, it could restrict your financing of health care to anything but regulated insurance. Or it could prohibit the sale of any vegetable but broccoli. The practical effect on private behavior would not be all that different.

Restricting your choice of vegetables might not be wise policy, but that does not make it unconstitutional. Through its power to legislate, Congress has the authority to set policy. That is its job and not the role of the courts.

Many people, including many Republicans over the years, have felt that an individual mandate for purchasing insurance is wise policy. It allows insurance companies to spread the risk, and they feel it is the only way that an effective private insurance market can work. Clearly, many others disagree. It is the job of our elected representatives in Congress to weigh the options. The passage of health reform reflects the workings of our political process, and it is that process that should decide if changes are needed.

Congress has had the power to restrict our vegetable choice to broccoli, or to impose similar restrictions, for a long time but has never considered doing so. There is no reason to suspect that it plans for a change any time in the foreseeable future. A Supreme Court ruling one way or the other on health reform is not likely to change that.

Opponents of health reform are having no trouble making their position heard. Broccoli haters can always do the same. We do, after all, live in a democracy.

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Check Up covers regional health news and a wide array of healthcare topics from pharmaceutical happenings to patient safety. Read about some of our bloggers here.

Portions of this blog may also be found in the Inquirer's Sunday Health Section.

Robert I. Field, Ph.D., J.D., M.P.H. Professor, School of Law & Drexel School of Public Health
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