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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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