Ginsburg: Unlike Health Insurance, ‘No Certainty’ that Someone Might Buy a Car or Broccoli Some Day

By Patrick Burke | June 28, 2012 | 4:19 PM EDT

In a Friday, Feb. 10, 2012 photo provided by Columbia Law School, US Supreme Court Associate Justice Ruth Bader Ginsburg speaks at Columbia Law School in New York at a symposium marking the 40th anniversary of her joining the faculty as its first tenure-track female professor. Ginsburg suggested Friday that her predecessors on the high court mistimed the milestone 1973 Roe v. Wade case that legalized abortion nationwide. (AP Photo/Columbia Law School, Eileen Barroso)

( - In her concurring and dissenting in part opinion, Justice Ruth Bader Ginsburg took exception Thursday with a portion of Chief Justice John Roberts’ majority opinion in which he referred to the car market and broccoli.

“Maintaining that the uninsured are not active in the health-care market, THE CHIEF JUSTICE draws an analogy to the car market. An individual “is not ‘active in the car market,’ ” THE CHIEF JUSTICE observes, simply because he or she may someday buy a car. Ante, at 25. The analogy is inapt,” Ginsburg wrote.

“The inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli as well. That is so of the market for cars, and of the market for broccoli as well,” she added.

“Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so. And if she eventually wants a car or has a craving for broccoli, she will be obliged to pay at the counter before receiving the vehicle or nourishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price,” Ginsburg added.

In his majority opinion, Roberts drew no distinction between the markets for health insurance, broccoli and cars as it applies to the individual mandate.

“The Government argues that the individual mandate can be sustained as a sort of exception to this rule, because health insurance is a unique product. According to the Government, upholding the individual mandate would not justify mandatory purchases of items such as cars or broccoli because, as the Government puts it, ‘[h]ealth insurance is not purchased for its own sake like a car or broccoli; it is a means of financing health-care consumption and covering universal risks,’” Roberts wrote.

“But cars and broccoli are no more purchased for their ‘own sake’ than health insurance. They are purchased to cover the need for transportation and food,” the chief justice added.