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The Supreme Court's Missed Opportunity to Treat Health and Death With Dignity

Even if the taxpayers accept the libertarian vision of simply acquiescing in the deaths of the untreated poor, they will still have to pony up to cover the ever-increasing costs of disposing of the bodies.
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The New York Times has just revealed how two opponents of health care reform conceived the memorable fear that requiring Americans to purchase of health insurance meant that the government could force us to eat broccoli. That this idea endures means that Supreme Court Justices and the Solicitor General missed the opportunity to explain the difference between eating vegetables and the government's responsibility to protect the public's health.

Think back to the curious scene during oral argument when Justice Samuel Alito mockingly questioned whether the government could compel individuals to purchase burial insurance. He lumped this important issue with the inane question about forcing people to eat broccoli. Unfortunately, the Solicitor General avoided a direct answer and thus, failed to explain why state and Federal governments could compel the purchase of burial insurance under some circumstances.

Rather than pointing to the differences between the markets for burial insurance and health insurance, we suggest that the Solicitor General could have offered two compelling reasons why mandatory burial insurance would be constitutional and explained why these reasons support upholding the congressional mandate to purchase insurance that helps people stay alive.

The first reason recognizes the certitude not only that every American will eventually die, but also, and more importantly in this context, that everyone's remains must be disposed of in some sanitary manner. More than aesthetic decorum requires that a corpse not be left exposed to the elements. It is a matter of protecting public health, inasmuch as putrification both produces an unbearable stench and also provides a breeding ground for flies and maggots and other potential disease carriers. And, of course, undisposed of bodies can potentially contaminate public drinking water or aquifers.

This is why public health codes generally restrict individuals' burial options both for themselves and their loved ones.

But, of course, burial is not a free good, which brings up the second reason: how protection of public health by disposal of bodies is to be financed. According to the national Funeral Directors Association the average cost of burial in 2010 ranged between $4,265 and $7,775 depending upon whether one purchased a vault. In many cases, cremation services rival the costs of physical burial. (These estimates, of course, do not take into account the potential for pressure brought to bear against the grief-stricken family by directors eager to run up costs.)

It is, therefore, a matter of public, and not merely personal, concern that our remains do not generate what economists call "externalities," in this case public health dangers generated by unburied (or ineptly disposed of) bodies. It is not surprising that every state has some arrangement for ensuring disposal of unclaimed cadavers or corpses voluntarily released by families unwilling or unable to afford the costs of burial. This means that the state will bury or cremate the human's remains at public expense. Thus, taxpayers must bear the expense of those who fail to purchase insurance and whose families refuse to pay the cost.

Despite occasional scandals, such as recent discoveries of unburied bodies in Chicago and Wadesboro, North Carolina, there is no perceived "crisis" of unburied bodies or grotesque costs shifted to the public fisc. At present most people arrange for, or have families who are willing to finance, disposal. But imagine that rising costs of burial services and shrinking personal incomes lead to increasing numbers of people left untended after death. What are now relatively small costs foisted on the taxpayer might become something quite substantial.

Moreover, imagine that an aging population, continuous mobility and relocation, concentrations of elderly in certain states strain the resources in state coffers to tend to the critical needs of the living, let alone the dead. An appropriate response would be to require that all individuals have burial insurance. One solution would be for Congress to assist the states in establishing an insurance system that could be purchased from public or private providers. Such a scheme would free families and friends from the anguish of spending their own scarce funds (if they have them) to ensure that their loved ones are treated with appropriate dignity.

Nothing would prevent an individual or family, who wants more for their dearly departed, from choosing additional or different services than those provided in required basic insurance policies. In a system of compulsory burial insurance, however, no one would face bankruptcy or privation by going into debt for basic (but unaffordable) burial services. By contrast, under present law, families unable to secure health insurance face the specter of bankruptcy from trying to keep a loved one from dying

As America's population ages we are likely to face more compelling demands to ensure death with dignity. Thus, the question of mandatory burial insurance-- wholly unlike the absurd questions about mandating broccoli consumption or cellphone purchase--required more respect. And guess what? Americans in fact have a mandatory burial insurance system; and moreover, it is a single-payer system to which all working must Americans contribute. It is called social security, which includes a death benefit to assist survivors to meet the cost of funeral expenses.

We are certain that Justice Alito missed the irony in his question regarding burial insurance: if five Justices vote to strike down the Congressional plan to provide health insurance for 40 million Americans, it is likely that many lacking access to health services will die prematurely, and they and their families will almost certainly need assistance to cover funeral costs.

So even if the taxpayers accept the libertarian vision of simply acquiescing in the deaths of the untreated poor, they will still have to pony up to cover the ever-increasing costs of disposing of the bodies.

Leslie Gerwin is the Associate Director of the Program in Law and Public Affairs at Princeton University and an Adjunct Professor of Law at Benjamin N. Cardozo School of Law where she teaches public health law and policy. Sanford Levinson is the W. St. John Garwood Jr. Centennial Chair in Law, University of Texas Law School and Professor of Government, University of Texas at Austin.

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