Can Congress Make You Buy Broccoli?

Professors George Annas, Wendy Mariner
and Leonard Glantz (l to r)

If the Obama administration is to prevail in enacting federal healthcare reform, it must provide “a persuasive limiting principle” to convince the Supreme Court that ruling in favor of the individual coverage mandate would not create a precedent for unlimited federal authority to require citizens to buy goods from private sellers, three BUSPH scholars argue in the New England Journal of Medicine.

Professors George Annas, Wendy Mariner and Leonard Glantz, of the Health Law, Bioethics and Human Rights Department at Boston University School of Public Health, say the Affordable Care Act has caused “constitutional turmoil” because of the “insistence by conservative legislators during the health care debate that any reform preserve the private insurance industry, which necessitated the addition of the individual mandate that is now being fought in the courts by similarly conservative forces.”

“Why, for example, is there no constitutional fuss over Medicare, Medicaid, or veterans’ health care?” the authors ask. “These programs raise no constitutional issue because they are government benefit programs funded by taxes, and the Constitution explicitly authorizes Congress to tax and spend for the general welfare.”

Annas, Mariner and Glantz explore the debate over whether the government can require 30 million uninsured Americans to obtain coverage, noting that Congress has “never required anyone to buy a product from private industry.” They note that the Supreme Court has issued both narrow and expansive readings of the Commerce Clause, making it difficult to predict how the Court will view the requirements of healthcare legislation.

“If the federal government can require people to buy insurance in order to keep premiums affordable, could it also require people to buy baby aspirin or a gym membership to keep those premiums affordable, on the theory that using these products reduces the use of health care services and thus insurance costs?” they ask. “Or, as Judge [Roger] Vinson asked at the December 16 oral arguments in Florida: ‘If they decide that everyone needs to eat broccoli,’ can Congress require everyone to buy broccoli?”

Read the full text of the New England Journal of Medicine Perspective piece.