Scalia to Ginsburg: Sorry, Health Care Market Is an 'Unwanted Suite of Products' for Many

By Jon Street and Pete Winn | June 28, 2012 | 4:37 PM EDT

Supreme Court Associate Justice Antonin Scalia. (AP Photo)

( – Supreme Court Justice Ruth Bader Ginsburg wrote in her concurring opinion on Thursday’s Obamacare ruling that the congressional requirement that individuals obtain insurance was not a mandate because everyone consumes healthcare at some point in their life.

“Health insurance is a means of paying for this care, nothing more. In requiring individuals to obtain insurance, Congress is therefore not mandating the purchase of a discrete, unwanted product,” Ginsburg said.

The justice said Congress is “merely defining the terms on which individuals pay for an interstate good they consume.”

“Persons subject to the mandate must now pay for medical care in advance (instead of at the point of service) and through insurance (instead of out of pocket),” Ginsburg said.

She added that it is “well within Congress’ domain” to regulate healthcare.”

“Establishing payment terms for goods in or affecting interstate commerce is quintessential economic regulation well within Congress’ domain,” the justice said.

But in a dissenting opinion, Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy flatly contradicted Ginsburg.

They did so by, noting with irony. that they agreed with her that Congress “‘is not mandating the purchase of a discrete, unwanted product.’”

“Instead it is mandating the purchase of an unwanted suite of products – e.g. physician office visits, emergency room visits, hospital room and board, physical therapy, durable medical equipment, mental health care and substance abuse detoxification,” the justices said in a footnote.

“But if every person comes within the Commerce Clause power of Congress to regulate by the simple reason that he will one day engage in commerce, the idea of a limited Government power is at an end,” they wrote.

The key word, they said,  is "unwanted."

The four justices, further on in their opinion, noted that many people object to the mandate to buy health insurance because they don’t need to purchase health insurance.

“Indeed, the main objection many have to the Mandate is that they have no intention of purchasing most or even any of such goods or services and thus no need to buy insurance for those purchases,” wrote Scalia, et al.

The justices flatly dismissed the government's argument in favor of the individual mandate – that the “health-care market” involves “essentially universal participation.”

“The principal difficulty with this response is that it is, in the only relevant sense, not true,” they said.

“It is true enough that everyone consumes ‘health care,’ if the term is taken to include the purchase of a bottle of aspirin,” they wrote. “But the health care ‘market’ that is the object of the Individual Mandate not only includes but principally consists of goods and services that the young people primarily affected by the Mandate do not purchase.”

The four justices said people who don’t want health insurance are “quite simply not participants in that market, and cannot be made so (and thereby subjected to regulation) by the simple device of defining participants to include all those who will, later in their lifetime, probably purchase the goods or services covered by the mandated insurance.”