What broccoli has to do with health care

Even the Supreme Court is beating up on the defenseless green vegetable.

Kai Ryssdal: Today was day two of the constitutional Woodstock that is the challenge to the health care reform law. On the docket this morning was the individual mandate, the requirement that basically all of us have to have health insurance, up to and including having to buy it if we don't have it already.

Our health care correspondent Gregory Warner was in the courtroom again today, as he was yesterday. Hey Gregory.

Gregory Warner: Hey there Kai.

Ryssdal: All right, another big day for you, pal.

Warner: Huge day. As if to underscore this -- it was horrible to watch -- but 30 seconds into the solicitor general's argument, I mean, he was stumbling words, he was clearing his throat, he drank some water, he lost his voice.

Ryssdal: Like nerves, you think?

Warner: I mean, it could have been allergies, but yeah, it sounded like nerves.

Ryssdal: All right, once he got going, what did he say?

Warner: The theme that kept coming up is: What happens to the young, healthy person on the couch, you know, sitting there minding his business?

Ryssdal: You bet. I've been one of those.

Warner: Can the government make that person buy insurance? And the liberal Justices on the court, they posed questions that suggested absolutely, because we never know when that person might get hit by a bus, and anyway, they're going to get older and sicker eventually. In Justice Kagan's words, the subsidizers become the subsidized. But conservative Justices say, uh oh, no way -- this is an overstep of federal power.

Here's Justice Kennedy from this morning's hearing.

Justice Anthony Kennedy: And here the government is saying that the federal government has a duty to tell the individual citizen that it must act. And that is different from what we have in previous cases. That changes the relationship of the federal government to the individual in a very fundamental way.

Ryssdal: So this is Justice Kennedy -- the swing vote, as we've been told oh so many times -- but also raising this question about personal freedom, right?

Warner: Exactly -- though swing, swing he did, I will say. Justice Kennedy -- more than any Justice this morning -- was arguing both sides. Because in another point, he said, hey look, that guy on the couch, he is part of the market for an actuarial reason, because in health care, we really are all in this together.

Kennedy: The young person who's uninsured is uniquely, proximately very close to affecting the rates of insurance and the cost of providing medical care in a way that is not true in other industries, that's my concern in the case.

So take your pick: Kennedy 1, Kennedy 2? It could be the fate of the health care law.

Ryssdal: Uniquely, proximately very close. I love that. But let me ask you a different question, maybe sort of blunt: Kennedy's talking about we're all in this together. Eighty percent of Americans -- the mass majority of people -- have health insurance or actually are that guy sitting on the couch who don't need it. So how big a deal is it for them?

Warner: I think there are really two answers to that question. One is, health care is what, one-sixth of our economy? It's on track to be one-fifth. So this law has major consequences for not only how the insurance market is based, but also how we control costs. But second, people want to make this about politics, and of course it is in some way, but we've been having this health care debate for almost 100 years, since 1914 and Teddy Roosevelt, and of course they called him a socialist. So I mean, while every other developed country has some kind of health-care-for-all system, we don't have one. That's really what the Justices are deciding.

Ryssdal: There was another thing that caught my ear in the arguments today, and I'm sure you heard it as well. It was this issue of whether the government can force Americans to buy something.

Warner: And it was really one vegetable that symbolized this. Actually broccoli was mentioned eight times in the highest court in the land, and actually Justice Scalia framed it in what has really become known in legal circles as "The Broccoli Question." Which is, as you said, if the government can make everyone enter this health insurance market, why not the food market?

Justice Antonin Scalia: So you define the market as food, therefore, everybody’s in the market; therefore you could make people buy broccoli?

How did broccoli become the symbol of the food that Americans don’t want to be made to eat? It might hail back to a pronouncement by George Bush Sr. on the tarmac in 1990.

George Bush: I do not like broccoli! I haven’t liked it since I was a little kid! And my mother made me eat it! Now I’m president of the United States and I’m not gonna eat it anymore!

That was the laugh tracked version that played on comedy channels long after.

Kermit Roosevelt is a constitutional law professor at the University of Pennsylvania.

Kermit Roosevelt: If the government tried to make you buy broccoli and eat it, I think there would be a constitutional problem with that.

But that’s not what the individual mandate does, he says. Making people buy a policy isn’t saying they have to go to the doctor. And grocers don’t write off the cost of giving away billions of dollars of free broccoli and then jack up food prices for the rest of us.

Roosevelt: We don’t have the broccoli emergency rooms where people say they don’t want broccoli and then they go and get it and make taxpayers foot the bill.

But don’t mention any broccoli emergencies to this guy.

Thomas Bjorkman: I feel protective of it!

Thomas Bjorkman is director of the Eastern Broccoli Project at Cornell University and has devoted last 20 years -- most of his career -- to studying this particular vegetable.

Bjorkman: I’ve gotten used to watching it grow, its like you’re used to watching your pet behave in certain ways, I’m used to seeing the broccoli behave in certain ways!!

If he’s learned one thing about broccoli its this: Most kids love it. It’s the best-selling green vegetable. When Bush said he hated it, broccoli sales shot up the next year.

Which makes you realize, whatever the Supreme Court decides about health care? Could be a great year for broccoli.

In Washington, I'm Gregory Warner for Marketplace.

About the author

Gregory Warner is a senior reporter covering the economics and business of healthcare for the entire Marketplace portfolio.
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Can the government make me buy health insurance? It seem to me that if they can force me to join the military, fight in a war and die then they can make me buy health insurance. Yes, folks, the government still has that power, it's just not using it.

So your argument is that since the federal government has one kind of strong coorecive power (e.g. the draft), it must therefore have every lesser power?

Would be great if you could reprint the text of Kermit Roosevelt's quote as it was used in the promo. Something along the lines of "the mandate would only be like broccoli if we had a nation full of people screaming 'I hate broccoli and i'm never going to eat it' who then went out and consumed 6 billion dollars worth of free broccoli."

No it would be more along th elines that if I mugged you, took the money from your wallet you had budgeted for the food of your choice, then bought broccoli with it from my buddy that grows broccoli and then put it on every corner. Then, when you were desperate for food, because I'd taken your money, you ate that same brocolli and I said "See, you must love brocolli, because you're eating my "free" brocolli."

Kermit Roosevelt, Marketplace radio and everybody else continues to tirelessly promote the myth that uninsured patients receive free treatment in emergency rooms. Nothing could be further from the truth: Hospitals charge uninsured patients through the nose — at much higher rates than it would charge an insurance company covering the very same emergency-room services.

And hospitals vigorously pursue uninsured patients for payment for any treatment they received in the emergency room. Want to get into deep financial trouble real fast in this country? It's easy: be uninsured, get sick and visit an emergency room for treatment.

Steve, excellent point. I know this from both personal and familial experience.

Every time I hear a discussion of “health care reform,” I hear misrepresentation (deliberate?) that seems to serve both corporatist sides of the debate in an attempt to frame the legislative mandate to buy health insurance as a fair market vs. socialist initiative. It’s Neither! Socialism? Please. By definition, socialism is the public (government) ownership of the means of production. Without a public option, the health care mandate is more a creature of corporate statism, not socialism, and should be roundly repudiated by all. Profit is its goal, not health care. There is absolutely nothing populist or progressive about this legislation. What does anyone think, private insurers are going to be coaxed or regulated into pricing health care insurance “fairly”? They are going to price it competitively, and do their best to force state governments to do the same, buying regulators as required. That means, among other things harmful to workers, consumers and taxpayers, costs will continue to rise exorbitantly. It’s outrageous that so-called progressives are championing this as an answer to the widespread practice of dumping patients when they get sick, or refused insurance for a pre-existing condition. A public option is the ONLY way that costs will come down, as private insurers are FORCED to provide or lose their markets entirely to the federal government. We’ve been hearing this nonsense about market competition for decades now (with forced consumption, yet). Highway robbery is what it is, with the path paved by crony capitalist-minded in government. Memories seem to be short. Does Enron and public utilities ring a bell? Mandatory auto insurance is another state-sanctioned rip-off. Every time I see an ad for Progressive or Geiko insurance on my TV screen, I wonder how much cheaper my insurance would be if I weren’t paying for all the advertising—if insurance were public, non-profit, and a creature of public concern rather than private profit. The health care mandate is rotten capitalism working hand-in-hand with rotten government to create the worst of all possible worlds, and misguided media seems to be facilitating it with misrepresentation. This whole bill was entirely unnecessary. It could have been real simple: Create an affordable public insurance system that competes with private industry—one that covers everyone. No mandate; just do it. Why do we need to get permission from Wall Street, private industry, or anyone to do that? And what happens if I want surgery in Thailand? I thought this was a global economy.

People shouldn't be getting the majority of their health care from insurance in the first place. It's the result of an earlier over step by government that has created the situation as it is today with insurance basically acting as prepaid medical services instead of as protection from the rare unexpected catastophe as it should be. We spend way to much on medical care in this country and if you want to see it consume even more then make it law that we have to buy a comprehensive health insurance policy.

Anyway, even if you agreed with the idea, the states can legally put systems like that in place if they want one. Why the heavy handed play from Washington?

Actually the fact that people get their health care from insurance is the result of American innovations in the insurance business. We do it that way because it makes a lot of people a lot of money.

Personally, I think the health care law is broken - but only because it's not "heavy-handed" enough. The mandate without a public option is basically a health-care industry subsidy program.

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