By Aimee Miles
KHN Staff Writer
Provided by Kaiser Health News
OCT 30, 2010
Voters in Arizona, Colorado and Oklahoma will have the chance Tuesday to repudiate the new health care law’s 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 they’re 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 wouldn’t override state mandate … that will be something the courts decide. … It’s not really clear to me what that does at the state levels.”
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 … 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,” 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.
“It’s getting billed as — and people seem to view it as — a referendum on federal health reform,” Harris said. “This has no ability to do anything about federal health reform.”
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 doesn’t go away even if the Affordable Care Act is ruled … 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. “It doesn’t stop the government from offering all sorts of alternatives and plans,” said Jon Caldara. “… 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.”
This article was reprinted from kaiserhealthnews.org with permission from the Henry J. Kaiser Family Foundation. Kaiser Health News, an editorially independent news service, is a program of the Kaiser Family Foundation, a nonpartisan health care policy research organization unaffiliated with Kaiser Permanente.
Good. If the mandate is overturned but the ban on covering pre-existing conditions isn’t, then the insurance companies will go bankrupt because they won’t have a healthy pool of people to subsidise the sick (e.g, sign up for insurance the day you get sick). Good by private insurance, welcome Medicare For All.
As a supporter of single payor, I’m badly hoping this happens.
Sern: If you want single payer, move to an appropriately commie country. The American people clearly don’t want it, the states are saying no, and tomorrow liberal democrats will be booted out of office in record numbers.
ONLY A SMALL MINORITY OF LIBERAL SOCIALISTS WANT THIS STUPID BILL AND SOCIALIZED MEDICINE. IF YOU WANT TO BE A LIBERAL COMMIE, MOVE ELSEWHERE, AMERICA IS ABOUT FREEDOM.
If the Supreme Court tries to overturn the states amendments, there will be hell to pay.
To the above,
You are wrong since a majority of people are in favor of a medicare-for-all (http://www.kff.org/kaiserpolls/upload/7943.pdf).
Almost 50% of healthcare expenditure is already by the government. In any case, I am not going to have an inane argument that rehashes political talking points about fascists and communists, nor will I stoop so low as to insult people over the internet. It is possible to fundamentally disagree on issues without turning the opposition into caricatures and making straw-man arguments.
I deeply disagree with you, but my disagreement is not with you as a person, nor do I think you’re an evil person for having an opposing view. In the end, this is my country as well, and I am not going to give up by moving – I will make my voice heard through public activism and through my vote at the polls. I am sure you will do the same.
Best of luck.
Sern – Your assessment of the implications is way off. Insurance companies will go broke? Gimme a break. What they will do is continue to jack rates way up. There has to be a mandate because when catastrophe strikes, hospitals and physicians are required to treat (as they should be) regardless of ability to pay, but then they are stuck with the liability and the cost. For our system to work, we need everyone involved, whether through public or private insurance.
Are you mad – This is just the kind of childish name-calling that prevents us from having reasonable and thoughtful discussions in the country. I don’t know where in the constitution it says that only those with libertarian views are allowed within our borders.
I never understood why people would give up their freedoms. If I want to buy something, I buy it. If I don’t, I don’t.
Yes, having a higher pool of people within an insurance plan is a great idea, but the government went about it the wrong way here, and all that’s going to happen – in the long run – is “bye bye private insurance, hello big government insurance. Will you still trust them when they have all the power over your health care? I sure as hell don’t, and will not.
People, keep your freedoms. If you don’t want them, that is your choice. But don’t force your insecurity on others and claim it as “the right thing to do”.
Sigh,
I agree with you that the government went the wrong way about this, but I also agree with Sern that it will hopefully hasten the inevitable move to a single payer system.
Costs are what is driving healthcare spending through the roof, and much of the cost can be eliminated by moving to a single payer system. The absurdity of employer provided health insurance should be dealt with, it is ridiculous to tie your employment to your health coverage. Unfortunately this abberation is now steeped in American culture and will be very hard to break. In the end a single payer government run system is the only answer.
The only feasible argument against it is that by limiting consumer choice (lumping everyone together under the same policy) you are making the average person better off (the average person pays less and gets more), but by limiting that choice of how much health coverage to purchase, you limit an individuals ability to tailor fit a plan with the insurance companies that fits both of their needs. This is certainly a valid argument, but medicare supplement plans exist right now, and there is no reason why a single payer system would necesarily exclude a private supplemental market.
What the states are doing in this article is obviously just politics. The states cannot repeal an act of congress. I think it is fairly clear cut that congress has the right to start a program like this as well. If social security is constitutional, so is mandating health insurance.
I think everyone recognizes that the health care bill is not perfect, but I would say it is a step in the right direction. I would like to see the government respond with a single payer system without all of the deception, but perhaps it is more efficient, if more underhanded to run the insurance companies out of business slowly.
You say that we should keep our freedoms, and I think that is a sufficiently ambiguous term to avoid the need to make a salient point. However your freedom to not purchase health insurance is a freedom that does not affect you alone, it also affects ME. If you have no insurance and crash your car into a tree, you don’t get stuck with the medical bills, I/we (the taxpayers and those who pay for private insurance) get stuck with the bill. I don’t think that is a freedom you should have, just as I don’t think you should have the freedom to steal from me or imbezzle money from your employer.
The problem with healthcare is that much of it is a public good. We do not, and should not (as Studentdoc said) exclude people from crisis care because of their inability to pay. If we as a society have made the judgement that this is the moral thing to do, the next step is to find out how to best pay for everyone’s healthcare, and there is really no logic based argument against a single payer system.
All very interesting points, Josh. I must point out, however, that in no way did I describe freedom as having no health insurance. I believe that was a misconception on your end.
The idea behind a single payer system goes against the foundation of this country. To force me to pay the clumsy, wasteful, and extremely slow government a given amount for health coverage is something I have a problem with, as do many other citizens. As you mentioned, we already have medicare/medicaid and social security. Take a gander at how fiscally successful those programs are. They are failing, miserably. Now, consider this same government dealing with the health care of our entire nation. More money, more people, more bureaucracy, more scandal, more problems. No thanks.
If government worked like a well oiled machine without the many pitfalls, I would have no problem entrusting the government with more of my money. But, it isn’t. Ever wonder why career politicians end up being one of the most wealthiest people in their respective state? It isn’t because they have your best interest in mind. Entrusting government to do the right thing will only end in disappointment, and less money in your pocket to do with it as YOU please, rather than what THEY “think” is best.
That being said, I have no problem with making health insurance mandatory for the very reasons you listed, but allow it to be through private channels across state lines, and not into the grubby wasteful hands of some clowns in Washington.