3 States To Vote On Health Insurance Mandate
Topics: Politics, Health Reform, Insurance
By Aimee Miles, KHN Staff Writer
Oct 30, 2010 - Kaiser Health News
Voters in Arizona, Colorado and Oklahoma will have the chance Tuesday to
repudiate the new health care lawfs keystone provision, one that requires almost
everyone to have health insurance or face a tax penalty beginning in 2014.
Ballots in the three states include proposed amendments to the states'
constitutions that would prohibit the enforcement of the individual mandate and
other provisions of the law. They echo a measure
that Missouri voters approved by more than 70 percent in August. Legislatures in
several other states, including Georgia, Idaho, Louisiana and Virginia, have
also passed state
laws with similar language.
But the ballot initiatives have set off a fierce debate: If they succeed,
will they have any effect?
Critics of the referenda say theyfre nothing more than a political gesture,
misleading voters to believe that amending their state constitutions would allow
them to opt out of the health care law. Given that the Supreme Court will likely
have the final say on the constitutionality of the law before 2014, the public's
vote wouldn't impact the national law, they say.
Some policy analysts agree.
"To me it's more of a polling statement," said Elizabeth McGlynn, an
associate director at the RAND Corp., a nonprofit research organization based in
California that has no position on the amendments. "It's not clear to me in this
case that the federal law wouldnft override state mandate c that will be
something the courts decide. c It's not really clear to me what that does at the
state levels.h
Proponents argue that the amendments have a strategic
function beyond the scope of individual states.
"As more and more states
pass these kinds of amendments c it's going to embolden legislative action to
repeal or defund legislative provisions" of the federal health law, said Robert
Alt, deputy director of the Center for Legal and Judicial Studies at the
Heritage Foundation, a conservative think tank in Washington.
'New Avenues Of Litigation'
Having the new amendments in place would give states greater standing in the
current litigation brought by 20 states against the federal law, says Christie
Herrera, a director at the American Legislative Exchange Council (ALEC), which
has provided model
legislation used by several states.
If the Supreme Court were to uphold the individual mandate in that case, a
state constitutional amendment would "open new avenues of litigation," she said.
States could also file suit to argue that the health law violates their 10th
Amendment rights to keep powers not otherwise delegated to the federal
government by the U.S. Constitution.
Opponents of the ballot amendments say the measures could complicate health
care issues within the states.
Dr. Michael Pramenko, president of the Colorado Medical Society, which
opposes the ballot initiative, said the amendment could affect any state efforts
to set up a program to expand insurance coverage. "It would tie our hands at the
state level,h he said, adding that the amendment would prevent the state
from setting up its own version of the individual mandate, independent of the
federal government, in the future.
The proposed amendments in Arizona, and
Oklahoma are
nearly identical, while the Colorado
amendment differs in subtle but significant ways. The measures are centered on a
few key provisions: that no individual can be forced to participate in a public
or private health plan; that a person's ability to make or receive direct
payments for medical services cannot be restricted; and that no one should be
forced to pay a penalty for failing to enroll in a health plan.
Colorado Controversy
The Colorado amendment makes clear that it applies only to state efforts to
impose such requirements.
The amendments do not deal with some of the other preparations for the health
law that are falling to states, such as the health insurance exchanges and the
expansion of Medicaid that will begin in 2014.
"They're operating on two bandwidths," trying to oppose the federal law while
also trying to implement it, said McGlynn. "Most of what states are going to
have to do, they don't get to avoid through these amendments."
Colorado's situation is unique because its amendment was brought to the
ballot through citizen initiative, and doesn't follow ALEC model legislation as
closely. Its language allows for a much broader interpretation of the measure
than other states have allowed for, argued Alec Harris, a policy analyst at the
Colorado Center on Law and Policy, which opposes the amendment.
gIt's getting billed as -- and people seem to view it as -- a referendum on
federal health reform,h Harris said. gThis has no ability to do anything about
federal health reform.h
Instead, Harris says, the language of the bill, which prohibits "the state of
Colorado, its departments and agencies" from requiring that a person participate
in a health plan, could interfere with the state's auto-enrollment of Medicaid
and Child Health Plan Plus beneficiaries.
"Quite a bit of this stuff doesnft go away even if the Affordable Care Act is
ruled c completely constitutional," Harris said. "It's the unintended
consequences that we're worried about."
The president of the Independence Institute, which drafted the amendment,
disagreed. gIt doesn't stop the government from offering all sorts of
alternatives and plans," said Jon Caldara. "c Really it means that the state
legislature can't mandate that people should buy something they don't want to by
without getting voter approval.h
© 2010 Henry J. Kaiser Family Foundation. All rights
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