It’s expected that Judge Roger Vinson of the U.S. District Court for the Northern District of Florida will rule in favor of the plaintiffs in the multi-state lawsuit challenging the constitutionality of the Affordable Care Act, marking a second win for repeal advocates. During yesterday’s hearing, Vinson sounded increasingly skeptical of the government’s contention that the power to compel individuals to purchase health insurance fell within the purview of the commerce clause:
“In the broadest sense every decision we make is economic. The decision to marry. The decision to keep a job or not has an economic effect,” he said. “If [the federal government] decided everybody needs to eat broccoli because broccoli makes us healthy, they could mandate that everybody has to eat broccoli each week?”Vinson also questioned the notion that a person who chooses not to buy insurance will necessarily be unable to pay for his or her health care. He himself was uninsured, Vinson said, when one of his children was born, and he paid the entire bill.
“I think it worked out to be $100 a pound,” he said.
But compelling people to purchase health insurance is very different than forcing them to eat broccoli. While a young person may choose to forgo coverage in their 20s, eventually she or he will become sick and will need medical attention. Without the mandate, that individual will either be denied coverage because she or he is too sick (remember, if you lose the mandate, the insurance regulations go with it ) or they’ll be priced out of the market. A recent national survey estimated that 12.6 million adults — or 36 percent of those who applied for coverage in the individual market — were denied insurance “because of a pre-existing condition in the previous three years.” Left uninsured, those 12 million Americans will skip critical doctor visits or avoid treatment, allowing a small medical problem to become a chronic medical condition in need of medical attention. If she or he doesn’t have health insurance, the costs of care are shifted throughout the system — picked up by the government and private premium payers.
One can be respectful of the fact that Vinson was able to afford to pay out-of-pocket for the birth of his child. But I strongly suspect that if there had been complications with that birth, Vinson would have had to go through his savings, or declare bankruptcy. Ultimately any care he couldn’t afford would have been paid by all of us.
Eating broccoli will presumably improve health and eventually lower health care costs, but requiring individuals to do so is fairly coercive and doesn’t present the kind of direct and immediate connection to commerce as encouraging people to purchase health insurance. Brocolli also doesn’t create any kind of cost-shift and is also not something we finance through insurance because food is a predictable expense that is paid in relatively small installments. Health care costs, on the other hand, come at you out of the blue and can be enormous.
You can argue that broccoli and insurance follow the same logical pathway (buying both would lower health care costs), but that doesn’t mean that both would make for logical policy. We can and should distinguish between and make different judgments about the two requirements. That’s why we elect policy makers and listen to judges.