"Health care freedom acts" may move beyond 3 states

Arizona, Oklahoma and Missouri approved amendments to block them from requiring individuals to buy coverage, but their stand against reform is largely symbolic.

By Doug Trapp — Posted Nov. 22, 2010

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Arizona and Oklahoma voters' Nov. 2 approval of constitutional amendments to block requirements for individuals to have health insurance could inspire similar pushes in other states in 2011 and 2012.

The similarly worded amendments -- generally referred to as "health care freedom acts" -- were written to prevent states from requiring individuals to have health insurance and provide as much protection as possible from similar upcoming federal requirements. Arizona and Oklahoma are the second and third states to approve ballot measures against the insurance mandate this year. Missouri voters approved a ballot initiative on Aug. 3.

But the state constitutional amendments are probably more a symbolic stand against the national health reform law's mandate for individuals to have health insurance, set to take effect in 2014. Few legal experts expect the state amendments to block the federal mandate because federal law generally trumps state law.

Polls show that the individual insurance mandate is the least popular provision in the health reform law. For example, 49% of Democrats would like to repeal the mandate and 44% would keep it, according to the November Kaiser Health Tracking Poll. Among Republicans, 88% want to repeal the mandate.

Arizona's Proposition 106, which was conceived in 2006, may have been the original model for the amendments and initiatives in Oklahoma, Colorado, Missouri and elsewhere. Arizona voters approved it 55% to 45% on Nov. 2. A similar version of the health care freedom amendment was defeated in Arizona in 2008 by less than one percentage point.

In addition to blocking insurance mandates, the Arizona amendment is designed to protect patients' and physicians' rights to do business together, said Eric Novack, MD, an orthopedic surgeon from Glendale, Ariz., who is believed to have conceived the Arizona amendment. Language in the amendment specifies that state residents can pay directly for legal health care services. An even higher percentage of Oklahomans -- 65% -- approved the state's anti-mandate constitutional amendment, known as State Question 756.

"Oklahoma is the reddest of red states. I think everybody pretty much knew that this was going to be a slam dunk," said Wes Glinsmann, director of state legislative affairs for the Oklahoma State Medical Assn.

Coloradans, however, rejected Amendment 63, by a vote of 53% to 47%, according to unofficial results. The push against it was helped by campaigns against anti-abortion and anti-tax issues on the ballot, said Edie Sonn, senior director of public affairs for the Colorado Medical Society. The campaigns against the other ballot issues increased turnout for voters who also opposed the amendment, Sonn said.

Medical society stances on the three constitutional amendments varied widely by state and could have influenced the outcomes.

The Colorado Medical Society, hospitals and community health centers campaigned against Amendment 63, Sonn said. Colorado Medical Society policy -- developed in part during a 2006 physician health reform congress -- supports requiring individuals to have health insurance, Sonn said. The society wants health plans to offer coverage without exclusions for preexisting conditions. Without a mandate to have insurance, these provisions would increase premiums.

The Arizona Medical Assn. did not endorse or oppose the state constitutional amendment, said Chic Older, ArMA executive vice president. ArMA leadership discussed the constitutional amendment extensively during the last three years, he said. "There were strong opinions for and against the proposition, and ArMA leadership therefore determined to take a neutral stance."

The Oklahoma State Medical Assn. didn't take a formal position on the proposal because no one asked them to do so, Glinsmann said. However, the OSMA House of Delegates voted this year to support the state's participation in a 20-state federal lawsuit against the national health reform law.

More states may follow

Legislators in at least 30 states introduced bills or state constitutional amendments in 2009 and 2010 to block requirements for individuals to have health insurance, according to the National Conference of State Legislators.

That number could grow in 2011 and 2012 because Republicans gained at least 19 state legislative chambers and five governors' offices on Nov. 2. The GOP now controls 25 Legislatures and 29 governors' offices.

The American Legislative Exchange Council, a nonpartisan group of conservative state legislators, has been helping state lawmakers advance anti-mandate constitutional amendments similar to Arizona's model.

"We are optimistic that the act will have more traction during the 2011 legislative cycle," said ALEC spokeswoman Raegan Weber.

On Nov. 8, Texas became the first state to pre-file a bill to put an anti-mandate constitutional amendment on the ballot, said Christie Herrera, director of the ALEC Health Care Task Force.

Work also has begun in Mississippi, Weber said. Rep. Alex Monsour, an independent insurance agent, is leading the campaign to gather the 97,000 signatures needed to get a health care freedom act on the ballot. After gathering the signatures, the Democratic-controlled Legislature can offer an alternative. "Most of the time, they don't," Monsour said.

Monsour expressed mixed feelings about the national reform law. He wants to keep its provision banning insurance companies' preexisting condition exclusions. But he doesn't like the individual insurance requirement. He also wants health insurance to be portable across state lines.

"We feel like we're going to make it [on the ballot]. This is a very hot-button issue right now," Monsour said.

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2 yeas, 1 nay

Voters in Arizona and Oklahoma on Nov. 2 passed similar constitutional amendments that will prevent these states from requiring residents to participate in a health system, including having health insurance. However, these amendments are not expected to overrule a national health reform law requirement to have health insurance or pay a tax penalty. Unofficial results in Colorado have voters rejecting a similar measure. (Missouri voters passed a ballot initiative in August to block the mandate.)

Initiative Yes votes No votes
Proposition 106
857,514 (55.2%) 694,866 (44.8%)
State Question 756
638,530 (64.7%) 347,956 (35.3%)
Amendment 63
744,643 (47.2%) 834,285 (52.8%)

Sources: State election offices and local newspapers

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