Part of the argument for ObamaCare's health insurance rests on the argument that mandatory health insurance does not actually require anyone to purchase something they wouldn't buy; it's merely regulating the financing of health care. One problem with this argument, however, is that the mandate does not merely require that individuals carry some sort of insurance. Instead, the minimum essential coverage provision requires that individuals carry policies that cover an array of specific benefits.
As The Hill's Sam Baker points out, Chief Justice Roberts raised this point at today's oral arguments, suggesting that the existence of mandatory benefits that many people won't use invalidates a key defense of the provision:
Verrilli said the mandate doesn't force people to participate in commerce because everyone is, or might unexpectedly be, in the market for healthcare services.
But Chief Justice John Roberts questioned that argument. He noted that the mandate will force citizens to buy plans with benefits they might know for sure they'll never use.
"If I understand the law, the policies that you're requiring people to purchase must contain provision for maternity and newborn care, pediatric services, and substance abuse treatment," Roberts said. "It seems to me that you cannot say that everybody is going to need substance abuse treatment or pediatric services, and yet that is part of what you require them to purchase."
The healthcare law requires most plans to cover a set of "essential health benefits," which will be defined by each state in accordance with 10 broad categories written into the law itself. Because of those requirements, Roberts said, the law requires people to buy services they won't use.
This could end up being a big problem for the mandate. On the one hand, its advocates say the mandate does not compel purchase and merely regulates how people purchase care. In fact, the law compels people to purchase coverage for specific health benefits that many would presumably not otherwise buy.