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Health Care Reform:

Health Insurance & Affordable Care Act

Health Reform Faces Intense Supreme Court Scrutiny

Day 2 at the Supreme Court: Individual Mandate and the 'Broccoli Possibility'

'Can You Create Commerce in Order to Regulate It?' continued...

The health care market cries out for regulation, Verrilli said, because the cost of the uncompensated care received by the uninsured, put at $43 billion a year, is shifted to the public in terms of higher insurance premiums. The mandate cures that problem, he said.

Without it, Americans could wait until they were ill before they bought insurance. This group of sick and expensive insurees would force insurers to raise premiums for a shrinking number of customers, which Verrilli said would wreck the private insurance industry. In contrast, the mandate puts healthy and sick alike in the insurance risk pool.

Verrilli noted that his opponents in the case concede that Congress has the power to regulate the purchase of health care at the point of sale -- when they need it.

But what the health reform law does is only require advance purchase of something people inevitably need at some unknown point. Such a requirement, he said, does not create a precedent for mandates to buy cars or cell phones -- or broccoli.

Several justices pounced on Verrilli’s argument that Congress can regulate the health care market because everyone is in it. Justice Samuel Alito Jr. asked why the government should not require everyone, including the young and healthy, to obtain burial insurance.

“Most people are going to need health care,” said Alito. “Almost everybody. Everybody is going to be buried or cremated at some point. What's the difference?”

Verrilli replied that the burial industry is not plagued by billions of dollars in cost shifting.

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