Can You Be Forced to Buy Burial Insurance?

March 27, 2012
Bob Keaveney

Tuesday's oral arguments on the Affordable Care Act produced at least one truly riveting exchange.

Today’s oral arguments on the Constitutionality of the individual mandate to purchase health insurance contained in the Affordable Care Act make for fascinating reading. (Seriously!) The most riveting exchange at all, though, was between Justice Samuel Alito, and Solicitor General Donald Verrilli, on the question of what the government can’t force you to buy, if anything, if it can force you to buy insurance.

The government has argued that health insurance is unique, because everyone needs healthcare sooner or later, and the predominant way of paying for it is via insurance. Therefore, those who do not buy insurance are simply choosing not to pay for care they will inevitably receive. In that sense, their choice to "do nothing" is a backhanded way of financing their healthcare, by making other pay for it, even if they don't see it that way at the time. The uninsured are not, then, non-participants in the health care market, goes this argument; they're just participating in a different way.

Alito had some questions, though, about how far one could take that argument:

"JUSTICE ALITO: Do you think there is a, a market for burial services?

GENERAL VERRILLI: For burial services?

JUSTICE ALITO: Yes.

GENERAL VERRILLI: Yes, Justice Alito, I think there is.

JUSTICE ALITO: All right, suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, "You know what you're doing? You are financing your burial services right now because eventually you're going to die, and somebody is going to have to pay for it, and if you don't have burial insurance and you haven't saved money for it, you're going to shift the cost to somebody else."
Isn't that a very artificial way of talking about what somebody is doing?

GENERAL VERRILLI: No, that -

JUSTICE ALITO: And if that's true, why isn't it equally artificial to say that somebody who is doing absolutely nothing about health care is financing health care services?

GENERAL VERRILLI: It's, I think it's completely different. The -- and the reason is that the, the burial example is not -- the difference is here we are regulating the method by which you are paying for something else -- health care -- and the insurance requirement -- I think the key thing here is my friends on the other side acknowledge that it is within the authority of Congress under Article I under the commerce power to impose guaranteed-issue and community rating forms, to end -- to impose a minimum coverage provision. Their argument is just that it has to occur at the point of sale, and -

JUSTICE ALITO: I don't see the difference. You can get burial insurance. You can get health insurance. Most people are going to need health care. Almost everybody. Everybody is going to be buried or cremated at some point. What's the difference?

GENERAL VERRILLI: Well, one big difference, one big difference, Justice Alito, is the -- you don't have the cost shifting to other market participants. Here -

JUSTICE ALITO: Sure you do, because if you don't have money then the State is going to pay for it. Or some -

GENERAL VERRILLI: That's different."

Is it?