What does broccoli have to do with health reform?

Up until now, I hadn’t considered to write an article on healthcare reform simply because of the divisiveness and the complexity of the issue. But after listening to the Supreme Court session and the arguments made on both sides, I can’t help but comment on one popular argument that continuously resurfaces. Yes, it’s the infamous “broccoli argument.”

In short, the argument states that if government were given the power to force individuals to purchase health insurance, a precedent will be created that allows for the government to force individuals to purchase other material goods such as broccoli. This is a slippery slope and, as Justice Anthony Kennedy proclaimed during the hearing, “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, and that changes the relationship of the federal government to the individual in a very fundamental way.”

But does it really change the relationship between the government and the individual? It is already mandatory in many states to vaccinate one’s child. If the individual does not act, the child will not be allowed to attend public school. During certain periods in American history, it has also been mandatory for an individual to enroll in the military or face prison time.

And will the mandate lead to a slippery slope in which we all will be forced to buy broccoli? No, thanks to another precedent set by McCulloch v. Maryland that cites the Necessary and Proper Clause of the constitution. In short, Congress has the power to make laws that are not expressly provided by the constitution as long these laws are a necessary and proper means of achieving a major, legitimate public end. The major, legitimate public end in this case is universal healthcare and the mandate is a necessary and proper solution to guaranteeing and subsidizing the healthcare coverage of the sick while allowing for private insurance companies to still be profitable. Otherwise, universal healthcare is only viable through a vast expansion of Medicaid and Medicare. This “government takeover of healthcare” is the reason why the mandate, as ironic as it may seem now, actually originated as a conservative idea.

On the other hand, it is difficult to think of any public end that would deem mandatory broccoli purchases as necessary and proper. Simply purchasing broccoli is, for example, neither a necessary nor proper way of guaranteeing a healthy lifestyle or preventing illnesses. This slippery slope is not as slippery as some make it seem.

What is really disturbing about the broccoli argument is the fact that it shows how out of touch some are with the current state of healthcare. One cannot treat health insurance as a routine material good because there are very few things in life that are as crucial, expensive, and unpredictable as one’s need for healthcare. At any time, not being insured has the potential of carrying with it a life-altering consequence. The broccoli argument dangerously simplifies the complexities of healthcare and masks the very real need for reform.

We should stop focusing on political issues such as the constitutionality of the mandate and start focusing on improving the real weaknesses of the bill such as its lack of malpractice reform and the absence of an effective solution to the primary care crisis. That would be the necessary and proper way to go about improving healthcare.

Tianzan Zhou will be an incoming medical student. He blogs at Taz-Mania.

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  • David Hanson

    Vaccination is not a good example — people can opt out of vaccinations by:  1. Homeschooling 2. Medical exception and in most states 3: Religious or ethical exception.  So, mostly children and their parents are not penalized by refusing to participate in the vaccination system.

    • LeftCoastRightBrain

       Again, this would only be an issue if one had children. The Individual Mandate covers everyone.

  • Anonymous

    “If the individual does not act, the child will not be allowed to attend public school. During certain periods in American history, it has also been mandatory for an individual to enroll in the military or face prison time ”

    Wrong, wrong, wrong!  There probably are some valid comparisons out there that would support the individual mandate in the healthcare law, but your examples are extremely poor.  Your vaccination example is an entrance requirement to public school- however, going to public school is a positive choice- if you’re against vaccination, you could home school, you could find a private school with similar views, you could educate your child though a co-op, or “unschooling,” there are MANY choices- and many kids are running around today unvaccinated.  Terrible example.  In regards to enrolling in the military there are two issues; 1) this is false, you were required to enroll in selective service which only provided you a probability of going into the military- we have never had outright required military service AFAIK, and 2) either way, the constitution clearly gives the federal government the authority to provide for the common defense.  I don’t like the force involved, but it IS constitutional.

    The “necessary and proper” part only applies first and foremost if the law is constitutional.  It does NOT allow congress to do whatever they please as long as they consider it “necessary and proper.”  Even so, it’s clearly not proper of the federal government to force every citizen, as a condition of being born, to buy a product in the marketplace from a private corporation because it serves some goal bureaucrats consider worthwhile.  An example of that would be instead of providing subsidies to the auto industry, why not force every American to buy a new car?  Serves the same goal, uses the same tool here.  I like that you chose the more ludicrous example (broccoli) from the arguments, and didn’t touch a very logical next step- life insurance.  Everyone will die, so all the arguments the administration is using apply, including the burden on the state to bury people when they die and can’t afford it.  And we know, for a fact, that we have an obesity epidemic- it’s costing society (and the state) billions of dollars.  If this law is constitutional, why can’t congress charge a tax penalty based upon your BMI at the end of the year?  Under your line of reasoning, that would be necessary (public health crisis) and proper (it has a legitimate public health goal), and constitutional (because the government can compel its citizens to do anything if the former is true).  

    The argument that “this issue” or that “that issue” is so important we must throw the constitution out the window has been made countless times for decades.  Sometimes the government even gets its way, and we’ve seen the consequences that takes upon our liberty.  We all agree healthcare is a very important issue, we all agree significant healthcare reform is desperately needed, but not like this.  The cost to individual freedom in this case is too high, and let’s face it, it’s ludicrous calling this bill healthcare “reform” in any meaningful way.  Congress’s solution was to say “everyone just go get insurance” because it was politically easier to do rather than actually tackling the problems, it was passed in a terrible way, it does not have the support of a majority of the American people, and it’s a huge cop-out.  Having listened to the audio of all the transcripts I firmly believe, as do liberal CNN commentators, that this bill will not stand.  Why jump on a sinking ship rather than using your platform to advocate for true healthcare reform in way that doesn’t result in unprecedented expansion of congressional power at the cost of individual freedom?

  • http://pulse.yahoo.com/_2LRZNHDZS6DU45WQ567LPQ7CMI ninguem

    “It is already mandatory in many states to vaccinate one’s child. If the
    individual does not act, the child will not be allowed to attend public
    school. During certain periods in American history, it has also been
    mandatory for an individual to enroll in the military or face prison

    Read the Constitution and get a clue.

    Vaccines and school attendance are state matters.

    Military service is a Federal matter.

    There are some things the Federal government is allowed to do, and there are things reserved only to the states.

    That doesn’t even account for the fact that you can opt-out of vaccination easily in most states.

    • Jack Malizzi

      The vaccination argument holds even less water.  Failure to vaccinate a child that is in direct contact with other children risks an outbreak–read impacts significant number of people.  Failure to obtain health insurance leading to a chronic illness impacts a single persons health.

      • davemills555

        “Failure to obtain health insurance leading to a chronic illness impacts a single persons health”…

        Impacts just one person? What? Huh? What about the cost shifting that happens to my pocketbook when these lousy freedom spouting Tea Party leeches go to the emergency room for their charity health care and, as a result, my insurance premiums go up along with every other responsible person that chose to purchased health insurance in advance of a health crisis? Duh! The Tea Party is filled with cheapskates that refuse to pay their own way and point to the Constitution to help get them through life as nothing but a bunch of freeloaders. Geez!

  • http://pulse.yahoo.com/_2LRZNHDZS6DU45WQ567LPQ7CMI ninguem

    Since we’re on the subject of broccoli.

    The States could…..if they wanted to……mandate that people eat broccoli.

    The Federal government cannot.


  • Matthew Bowdish

    The author seems unfamiliar with the enumerated powers of the federal govt, especially with respect to those reserved for the States (10th Amendment) or to the People (9th Amendment) as others have pointed out.  States have much more power to compel citizens to do things that the federal govt does not.  I would also note that the Commerce Clause of today is much different than the original intent for the passage as outlined by James Madison in Federalist No 42, among others.  The expansion of the Commerce Clause to include almost all forms of economic activity is not what the Founders intended by its inclusion in the Constitution and it was established by activist justices to undermine traditional meanings during the expansion of federal power during the New Deal.

    I would also comment that the author’s use of McCulloch v Maryland is inapprpriate as a defence of the PPACA.  The Supreme Court decided in McCulloch that the federal govt could set up the second national bank to better manage its fiscal affairs, but it did not compel Americans to deposit money in the bank and thus did not force them into economic activity like the PPACA does.  Most of the modern Justices saw through this excuse in the oral arguments this week when Verrilli brought this up.

    In fact, there seemed to be no “limiting principle” that withstood the justices’ questions, even from the sympathetic liberal justices, other than “trust us.”  If this law stands, then government can force individuals to do anything it wants.  This absolutely changes the relationship between individual and state and will lead to less liberty.  And if you don’t mind your own factions’ mandates, just remember what will happen when your political opponents get into power.  Will you be happy when they use these principles to impose their own mandates on you?

    • http://pulse.yahoo.com/_2LRZNHDZS6DU45WQ567LPQ7CMI ninguem

       “….And if you don’t mind your own factions’ mandates, just remember what
      will happen when your political opponents get into power.  Will you be
      happy when they use these principles to impose their own mandates on


      That is the part they never seem to get. Goes for both sides.

  • Anonymous

    You are right that malpractice and primary care are areas that need reform badly. Totally with you there. And perhaps, since it is likely the court will declare this bill unconstitutional, that it is time to start talking about these real problems.

    On the other hand, it is not helpful to discount the issue of constitutionality. If a federally enacted bill fixes malpractice and the shortage of primary care physicians but does so in an unconstitutional way, it fails. Given the uncertainties, this present bill should probably not be strengthened where it is weak, but tossed and a new bill crafted that is actually ordered to fixing the problems.

    And it is time to start focusing on fixing the problems.

  • Matthew Bowdish

    Also, I love how a medical student thinks he/she is so “in-touch” with how health care is delivered in this country and other who actually work in the field and disagree with their socialist tendencies are not.  As someone who actually provides care for a living, I know that health insurance is not health care.  Even if someone has insurance, it doesn’t mean they’ll get the care they might need, even “crucial” care.  That goes for private as well as govt insurers.  In fact, we know from the Univ of Virginia surgical study that Medicaid patients has higher mortality rates than did the uninsured.  So, the notion that insurance cures all ills is wrong.  Conversely, I have patients who have high-deductible plans or no insurance at all and pay me for my services via cash.  There are also other items that are far more crucial for living than coercing folks to buy a health insurance plan.  Food is the perfect example.  It’s absolutely necessary for life…it’s crucial!  But we don’t expect the federal govt to mandate food, although with the recent episodes in North Carolina schools, we see this administration starting to try to do so.  What about a federal mandate for water?  The author should read Sen Tom Coburn MD’s ideas for health care reform or those from Docs4PatientCare before deciding they have all of the answers.

    • http://twitter.com/zindoc Keith Marton

       I would not be so quick to denigrate the opinion of someone just because they have not graduated from medical school; but since you seem to believe that an MD provides one with superior reasoning, I’ll add my perspective as someone who has been a physician for over 40 years and has done everything from delivering old-fashioned primary care to leading large health systems.
      1. I agree that the evidence shows that having health insurance is not a cure-all. However, data also show lacking health insurance has been associated with as many as 15-18,000 preventable deaths per year.
      2. Insuring everyone not only makes economic sense–our “non-system” of health care (It has pretty much every model of health care found in the world–read TR Reid’s The healing of American Health Care) is directly related to why we have such high health care costs and why American businesses are either refusing to offer employee health insurance or are less competitive because of high health care costs. Insuring everyone is also a moral imperative–Just like insuring that everyone has access to basic education, food (yes, think food stamps), and clean water (AKA the EPA)
      3. I don’t think the author thinks he has all the answers. None of us do.  However, I will note that the  majority of knowledgeable health care organizations (e.g. the AHA, ACP, most health system leaders ) support the Affordable Care Act as a legitimate  way to improve access, quality and costs–in a way that respects the American approach to health care
      4. Under the ACA plan, your patients who can afford to do so could still go bare, pay the relatively small penalty (or is it a tax?)  and pay you in cash if they choose to do so. Hopefully, they will have the means to also pay cash for their hospital bills, etc., if and when they get seriously ill. As you know, most everyone in this country faces that prospect in their lives and few can afford the cost of even a 5 or 10 day stay in the hospital.

      • davemills555

        I agree…

        Sadly, if the Supreme Court decides that the ACA is unconstitutional because of the individual mandate, they will forever end the possibility of implementing that good tool except on a state level. Once the Supreme Court rules, discussion is virtually ended because it’s very rare that they ever revisit a previous ruling. Therefore, a good idea, an idea that the ultra-conservative Heritage Foundation originally invented, an idea that Republicans like Gingrich and Romney have championed in the past, will have been thrown out with the bathwater. Meanwhile, the health care industry remains silent. 

  • Edward Stevenson

    The broccoli argument is not a slippery slope fallacy, it is more directly analogous to the core purpose of the mandate than the mandate itself. that purpose being the general health of the population.  the mandate has the purpose of increasing health insurance in hopes that as a secondary effect we will have an increase in health. mandating broccoli or say gym memberships would have a more direct, cheaper, and scientifically proven way to promote the health of the general population. the leap from health insurance to health is a big and mostly false leap. if it is not lawfully to force people in activities that are healthy, then it is even less lawfully to force people to buy a product which may or may not lead them to be healthy. 

    The proper application of the slippery slope argument would be: now that the government mandates health insurance purchase for the beneft of all in society and so that health insurance companies can have protected profits, it should then be lawful to require people to purchase Dodge vehicles so that people have transportation they deserve and for the protection of American profits and jobs.  while this situation is a slippery slope fallacy, it must also be considered that laws and legal precedent which justify future laws have a historically proven evolutionary form. slippery slope fallacies are not inherently false. they are just not inherently true. its a type 1/alpha verse type 2/beta error for those familiar with those statistical/logic terms.

    I also take issue with you defining health insurance as uniquely not a “good” (more properly a service). first it is not crucial. Cash still buys medical service (outside of Canada), insurance often does not cover many important and helpful medicines and treatments. I pay $1000 for my high deductible (real) insurance. I pay $1200 a year for my car insurance, I pay $2400 a year for my internet/phone service. so what is “expensive”? Your 3rd point, unpredictable. most health care is rather predictable, I can look at my patients lifestyle and family history and give a fairly accurate guess at what health problems they will face. there are obviously accidents and ailments but even small health insurance companies have not had a hard time managing the variability in claims, so it must not be too unique in that way. home ownership, gasoline, computer software can also be defined as crucial, expensive, and unpredictable, the list could go on.

    • davemills555

      Are you a member of the Tea Party movement?

      • LeftCoastRightBrain


        You seem to have some Tea phobia going on here.

        • davemills555

          Bingo! You broke the code!

  • http://pulse.yahoo.com/_6C65YWGCC7P5C6CGMMBK7VMFXE JenniferL

    OK, what does craving sex 3 times a day have to do with health care?  Why should I fund the hyper-sexual expensive antics of some 30 something bizarre law student drama queen?

  • davemills555

    Nothing! Show me a grocery store that is being forced to provide broccoli to customers against their will and I’ll show you countless hospitals and emergency clinics that are forced to provide health care against their will. The same is true for funerals and funeral home directors. I don’t know any funeral home directors that are mandated to provide caskets for free. The argument about mandates, whether they are individual mandates or hospital mandates, has nothing to do with funerals and broccoli. But, those ideas are what pass for Republican ideas these days. Romney liked mandates, Gingrich liked mandates. Even the ultra-conservative Heritage Foundation endorsed the individual mandate. Go figure!

  • davemills555

    What about a “mandated” military draft? In 1967, I was mowing my lawn and I went to my mailbox and found a letter from my draft board saying I had to go serve my country in the Army in Vietnam. I was forced to serve. I had no choice. It took three purple hearts for them to finally release me from that “mandated” obligation. Is that constitutional? What does that have to do with broccoli? 

    • LeftCoastRightBrain

      I think women were excluded from the draft. Sort of punches a hole in the draft/mandate analogy. 

  • http://www.facebook.com/timrichpt Charles Timothy Richardson

    I thought Antonin Scalia’s broccoli metaphor was meant to challenge the Obama administration’s 
    characterization of the health care market as an essential good. 
    People cannot opt out of the market for food, therefore broccoli, an example of food, is essential. 

    Conservatives claims they CAN opt of out the market for health insurance because their purchase, today, of insurance against a future illness is unnecessary.

    Conservatives say they will finance their health care consumption at the point of care, with cash I suppose, rather than shift the burden to taxpayers and premium holders.

    Therefore, those with sufficient income to purchase health insurance shouldn’t be forced to do so.

    Tim Richardson, PT

    • davemills555

      “Conservatives say they will finance their health care consumption at the point of care, with cash I suppose, rather than shift the burden to taxpayers and premium holders.”
      That’s what conservatives say “today”! However, that’s not what conservatives have said in the past. You see, conservatives flip-flopped on their support for the individual mandate. In 1993, the ultra-conservative Heritage Foundation came up with the idea of mandating health care insurance for individuals. As a Congressman, Newt Gingrich strongly supported the Heritage idea back then. Mitt Romney got the Heritage Foundation idea passed and enacted in Massachusetts. Bottom line, the individual mandate, the idea of making individuals responsibility for their eventual health care costs, is a conservative idea. Liberals finally embraced this Heritage Foundation idea and Democrats, with zero help from Republicans, got passed and enacted in 2010. History proves that the individual mandate is a bipartisan idea. The real issue is not about the individual mandate. The real issue is that a black man had the audacity to run with this idea. To be sure, members of Congress from states like Alabama, Kentucky, Tennessee, South Carolina and Georgia, members of Congress who are still fighting the Civil War and members of Congress that still think abolishing slavery was a huge mistake, can’t possibly allow President Obama to get away with such audacity and take credit for a Republican idea.

      • Matthew Bowdish

        Just because someone is for something one day is meaningless the next.  Otherwise, we would all be listening to 2008 Obama when he argued strongly against the health insurance mandate.  Although I don’t like Romney, he does draw a distinction between the role of state govts, which can mandate just about anything…car insurance, health insurance, single payer (like in VT), and the federal govt which has enumerated powers as outlined in the Constitution.  BTW, one of those powers is defense, which explains you being drafted during Vietnam was allowed and other mandates are not.  That being said, I don’t support national drafts  It’s true that the enumerated powers of the federal govt have been expanded greatly because of left-wing ‘interpretations’ of the Commerce and Necessary/Proper Clauses that did not follow original meanings.  But if these clauses allow the federal govt do literally mandate anything and everything, what’s the point of even having a Constitution?  Also, the Heritage debate over the mandate was a little more complicated than you have described.  http://www.forbes.com/sites/aroy/2012/02/07/the-tortuous-conservative-history-of-the-individual-mandate/  Furthermore, your race-baiting undermines your arguments and is repungnant.  Why can’t people disagree about ideas that are fundamental to our country’s future without resorting to this kind of intellectual laziness that only de-humanizes other people.  It’s so moronic.  Also, as someone whose family were abolitionist republicans since the founding of the party in 1850s and who actually fought in the Civil War (we even had one uncle die at the Battle of the Wilderness), I would also remind you it was the Democratic Party were the supporters of slavery, not the GOP.

  • davemills555

    If you want to see what Mitt Romney says about the individual mandate, then you need to do a web search for this video…

    “See Mitt Romney Promote an Individual Mandate”

  • LaGrangevilleJim

    While the broccoli metaphor is a admittedly a stretch just to make a point, there are other more reasonable fears of Federal mandates much closer to healthcare.  Suppose that the mandate is found constitutional and then suppose that annual physical exams are proven to reduce more serious illness and it’s associated costs.  What would prevent the Federal government from requiring that everyone have an annual physical exam or pay a penalty.  If the mandate is found constitutional, nothing would prevent this.

    • davemills555

      I don’t see penalties as being necessary. I see it more like offering an “incentive” to get a physical exam. The best place to begin such incentives is with employers since they offer insurance coverage for the vast majority of Americans. Guess what? It’s happening as we speak! More and more employers are offering financial “rewards” to workers for completing a set of medical tests. Simple tests like blood pressure, cholesterol, blood sugar, BMI, PSA, etc. An employee’s premium could be reduced for completing these tests regardless of the results. For those who must pay for their own insurance, maybe waiving the copay for such preventive tests could be an incentive. Either way, the more patients that see a doctor and get tested, the more involved and invested they become in their own personal health. It’s more about education than it is about penalties. 

      • LaGrangevilleJim

        Agree completely.  Incentives for personal behavior, with a choice of whether to partake of these or not, are fine.  The Federal government mandating that you do it or pay a penalty – that’s not fine.

  • Buckindaburg

    Recently, while in the reception’s area, a women entered and asked to see a doctor. She had no appointment; no insurance; and little or no regard for protocol. She did have, as she complained, a headache.  The cost to administer to her complaint involved no doubt, more than giving her a couple of aspirin. She would require testing to determine her problem and the cost is passed on to patients that pay.
    Obviously, mandating that she needs to be seen, is not how medicine should be handled.

  • http://profile.yahoo.com/PPZZHB7PX6QO3EQ66NEDUM7U3U someideas

    If the government can require everyone to buy health insurance, then the government should ban health insurance companies from being traded on Wall Street and mandate that health insurance executives/employees may not be paid more than $1 million per person annually. In the early 1990s health insurance companies converted from not-for-profit companies to for profit companies traded on Wall Street. Ever since the conversion, the insurance companies have been more interested in making money than in using the money employers/individuals give them for their health care needs on health care. The truth is that health insurance companies are raising premiums, raising co-pays, lowering coverage, and lowering reimbursements for health care providers because health insurance executives are more worried about making money for themselves and their shareholders than using our money to pay for our health care needs. Health insurance companies, in the end, obstruct health care. Not only do they take our money with a promise to pay if we are sick or injured, when the time comes, they often refuse to pay. Health insurance companies have numerous excuses for not paying while at the same time charging a small ransom to be covered under their health plan. The new law should not be a windfall for the health insurance industry and the money the health insurance companies receive should be used to reimburse doctors for their services.

  • katerinahurd

    The broccoli arguement does not only simplify th ecomplexities of health care as you state in your article.  The broccoli arguement distracts from the real issue that is the uncontrolable expense in health care delivery.  Do you think that justices such as Kennedy with a secure job (lifetime tenure) linked to a health care coverage for life, can simpathize with the unemployed and uninsured citizen.  It seems that the mandate issue brings up the choice that every American citizen has to make.  The Constitution provides the floor for the constitutionality of any law passed by the Congress, but not yhe cieling.

  • davemills555

    Here’s a suggestion, come back after you’ve gotten your draft notice, after you’ve been forced to serve your country and after you’ve earned your first purple heart. Then, maybe you’ll have some standing in arguments that relate to the freedoms that our constitution guarantees. As far as your bogus Vietnam comment, the 13th Amendment states that “neither slavery nor INVOLUNTARY SERVITUDE, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction”. Vietnam was never a declared war. It was a police action. Congress never officially declared war with regard to Vietnam. It was illegal to conduct a draft if a war never existed. 

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