In day 2 of the Supreme Court arguments on healthcare reform, most legal analysts say the individual mandate in the Affordable Care Act is in trouble based on the oral arguments. The good news is that eight justices were very engaged in asking questions (Justice Thomas apparently hasn’t asked a question in over six years). I just heard a snippet of the arguments where Justice Antonin Scalia questioned whether allowing the government to require individuals to buy health insurance could allow them to mandate other purchases. Like broccoli.

It’s a flawed analogy, and here’s why:

• All people need healthcare at some points in their lives, and if they do not obtain insurance, the cost of their care is shifted onto those with insurance. Not the case with broccoli eaters. For them, broccoli is a choice. And if they don’t buy broccoli, they might instead buy peas, beans or vitamins, or nothing at all (in which case they will need our healthcare system!)
• The government doesn’t mandate that all people, broccoli eaters or not, be able to eat free in America’s restaurants when they are really hungry. And they certainly don’t expect other diners to foot the bill for someone who can’t or won’t pay. But that’s what happens in our country with respect to healthcare. Under the federal EMTALA law, all hospitals must treat and stabilize all people who present in the emergency room, regardless of their ability to pay. In New Jersey, the legal mandate goes even further to include not just the ED but all settings.
• There is no supermarket for the uninsured. Hospitals and federally qualified health centers are their safety nets. Commercial insurers aren’t looking to provide them with free insurance. But broccoli is freely available at any grocery store or produce stand.

I’m proud of Justice Scalia and have a deep respect for him. After all, he’s a Jersey boy who made good. But his broccoli analogy leaves me hungry for some thoughtful analysis.