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by Laura Mecoy, AARP Bulletin, March 25, 2010
• State pushback to new federal health law picking up some steam
• More than a dozen attorneys general have filed a lawsuit
• Courts usually side with federal government in such disputes
The Commonwealth of Virginia, home to founding fathers and the country’s first English settlement, is chasing history once again. It is at the epicenter of a movement in the nation’s courthouses and statehouses to derail landmark federal health care legislation just signed into law.
Even before the federal legislation was signed, Virginia became the first state in the nation to enact a law blocking a critical component of the health care legislation—the requirement that nearly everyone buy insurance or pay a penalty. One other state, Idaho, has since approved a similar law. Lawmakers in more than 30 other states are considering similar legislation, and Arizonans will vote on a statewide ballot measure in November that would have the same effect. Virginia’s attorney general also became one of the first of more than a dozen state attorneys general to file lawsuits challenging the new federal law.
Legal scholars say these tactics won’t work. But that hasn’t stopped opponents from using legislation and lawsuits to continue their protest against health care reform.
“These are not serious legal challenges,” said Timothy S. Jost, Washington and Lee University School of Law professor. “They are political theater.”
Virginia Attorney General Ken Cuccinelli, R, said the commonwealth is in a unique position to sue because it already has a law in place that conflicts with the new federal statute. He acknowledged that courts usually side with the federal government in disputes between federal and state law. But he said this case is unique because the health care bill is “unconstitutional.”
Jost disagreed, saying the “states cannot pass laws nullifying federal law. We fought a Civil War over that.”
While these challenges may be more symbolic than substantive at the federal level, health care advocates said the efforts could have unintended consequences at the state level.
In Wyoming, for instance, supporters of health care reform argued that state legislation would jeopardize federal Medicaid matching funds, strip away health care consumer protections and limit lawmakers’ abilities to pass future health care reforms. Their arguments helped defeat efforts in the Wyoming legislature.
That was in February. Now Tim Summers, AARP Wyoming state director, said the health care reform repeal movement has gained so much momentum that victories, like the one in Wyoming, may be difficult to achieve.
“Before the health care reform vote in Congress, I would have said this was probably a train that could be stopped in some states, especially those with more politically moderate legislatures,” Summers said. “But after the vote, the country seems more polarized, and this train may be more difficult to stop.”
Even so, AARP remains “committed to implementing the promise of national health care reform in every state across the United States because it’s good for our members,” said JoAnn Lamphere, AARP state government relations director for health and long-term care. “Health care reform strengthens the Medicare program, and it provides assurances that nearly every American will have access to affordable and secure health coverage, which has never happened in America before.”
In Idaho, for instance, AARP “fought tooth and nail” to defeat the Idaho Health Freedom Act, but the measure was signed into law March 17, said David Irwin, AARP Idaho director of communications. It says state residents “shall be free to choose or decline any mode of securing health care services without penalty or threat of penalty.”
“This is the year that every member of the Idaho Legislature and the governor are up for re-election,” Irwin said. “They view this issue as one they can use to their benefit on the campaign trail.”
While election-year politics are fueling the debate, Richard Cauchi, director of the National Conference of State Legislatures health program, said lawmakers still face many hurdles with this type of legislation. He said bills already died in six state legislatures: Indiana, Mississippi, New Hampshire, New Mexico, South Dakota and Wyoming.
But there is an organized campaign to push the legislation in other states. It began in Arizona two years ago when two physicians proposed a statewide initiative to block any health insurance requirements. The Goldwater Institute, a conservative think tank, drafted the language for the physicians’ initiative, Proposition 101.
Arizona voters narrowly defeated it in 2008 after opponents raised concerns about its impact on future health care legislation and on Medicare and Medicaid in the state.
Despite the defeat, Proposition 101 captured the attention of the American Legislative Exchange Council (ALEC), an organization of conservative state legislators in Washington. ALEC used Proposition 101 as the basis for the model legislation that state lawmakers are now using to draft the bills and ballot measures to block federal health insurance requirements.
It’ll be back on the Arizona ballot in November as the “Arizona Healthcare Freedom Act,” based on the ALEC model. It says no one can be compelled to participate in any health care system.
AARP and other organizations oppose the new initiative, but predict it will be even harder to defeat.
“It was an uphill battle last time,” said Jay Hardenbrook, AARP Arizona associate state director for advocacy. “It will definitely be a bigger hill this time.”
Laura Mecoy has written about public policy for 25 years.
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