Health insurance mandates face resistance from states
■ But measures stipulating that residents cannot be forced to obtain coverage face a tough road and could be superseded by federal law.
By Doug Trapp — Posted Feb. 15, 2010
Lawmakers in at least 30 states have introduced bills or constitutional amendments in the last year largely aimed at blocking any future requirement that individuals have health insurance -- a key provision in Democrats' stalled national health system reform legislation.
Although the state measures face uncertain futures and could be trumped by federal law, the number of states whose lawmakers are introducing anti-mandate legislation continues to climb, said Richard Cauchi, health program director at the National Conference of State Legislatures. Some states have multiple anti-mandate bills in play.
"They may well not be able to prevent some binding formal federal health reform of the future, but they are not just symbolic," Cauchi said.
If approved, the measures would block individual states' efforts to require residents to have health insurance, such as a Massachusetts-style insurance mandate, said Mark Hall, a professor of law and public health at Wake Forest University in Winston-Salem, N.C.
Such a mandate is designed to expand the size of a health insurance pool, balancing the high cost of caring for older and sicker residents with less-costly care for younger and healthier people. At the same time, residents can buy health insurance even if they have preexisting conditions or other health issues.
But proponents of anti-mandate measures say expanding state high-risk insurance pools would be better for covering the traditionally uninsurable than compelling others to buy health coverage they don't want.
The path to enactment is tough for such measures. Most states require at least 60% majorities or votes in two separate annual sessions in each of their legislative bodies just to put constitutional amendments on the ballot, Cauchi said.
So far, Arizona is the only state to put an anti-mandate constitutional measure to a public vote. State lawmakers voted in June 2009 to put the measure on the ballot this November. It would block any law or rule from compelling someone to participate in a health system.
Virginia could be next in line. The Democratic-controlled Virginia Senate on Feb. 8 approved an anti-mandate bill by a 23-17 vote. The measure would prevent residents from being required to buy health insurance or pay a penalty.
Virginia Gov. Bob McDonnell supports the Senate bill. "Like them, I oppose these broad, costly federal mandates that undermine the ability of Virginians to create more access at less cost." The measure still must pass the Virginia House.
Legislators in seven additional states have announced their intention to file similar anti-mandate measures this year, said Christie Herrera, director of the health and human services task force for the American Legislative Exchange Council, an association of conservative state legislators. But legislatures in six states failed to adopt anti-mandate measures introduced in 2009, Cauchi said.
The Arizona example
The model for many of the constitutional amendments and bills against health insurance mandates appears to have been conceived in 2006 by Eric Novack, MD, an orthopedic surgeon from Glendale, Ariz.
Dr. Novack and others gathered more than 230,000 signatures to put the Freedom of Choice in Health Care Act on the ballot in November 2008. The one-paragraph constitutional amendment asserted Arizonans' right to pay for medical services directly and not to participate in any health system or insurance plan.
"This is not some big reactionary thing against the president's plan or the Democrats' plan," Dr. Novack said. Instead, it's an attempt to make sure patients and families -- not insurance companies -- stay at the center of the health system, he said.
Arizona voters rejected the Freedom of Choice in Health Care Act by a margin of 50.2% to 49.8% -- a difference of fewer than 8,700 votes out of 2.1 million cast. Opponents of the measure were concerned that it would cause the state to lose federal Medicaid funding, he said. In response, Dr. Novack and other supporters worked with opponents to clarify the proposal's intentions.
The revised measure, the Arizona Health Care Freedom Act, is also a state constitutional amendment with language similar to its predecessor. "We are confident that the support, at this point, is there," Dr. Novack said of the November 2010 vote.
The Virginia Senate's adoption of a bill based on the Arizona measure surprised many because it attracted the support of five Democrats, including state Sen. John Miller. Miller said it was time to send a message about where Virginia stands on individual insurance mandates. "Government is too intrusive to begin with, and this is just a step over the line."
A legal long shot
So far, the anti-mandate measures are taking on federal health reform legislation that hasn't been enacted. "Until we actually have federal law, it's all an exercise in expressing concern about where the federal effort is going," said Joy Johnson Wilson, health policy director at the National Conference of State Legislatures.
State constitutional amendments and laws likely would not block a federal health insurance purchasing mandate, should Congress revive stalled health reform legislation already adopted by the House and Senate, said Wake Forest's Hall.
The U.S. Constitution says federal laws supersede state laws, Hall said. "That just is a bedrock principle of our legal system."
But Dr. Novack and Herrera said the current U.S. Supreme Court is the friendliest in years to arguments against federal power. Both cited recent rulings in which the court allowed state laws to stand, including Gonzales v. Oregon in 2006, which upheld Oregon's assisted suicide law.
Although the American Legislative Exchange Council has a conservative membership, it supports expanding high-risk state insurance pools that typically charge more costly premiums than private insurance, Herrera said. "You can't be an anarchist when it comes to these things."
Dr. Novack agreed. "We need to have a functioning, sustainable safety-net health care system in the U.S."