State Legislation Opposing Certain Health Reforms, 2009-2010
Upated: November 16, 2009 - subject to additions
by: Richard Cauchi, NCSL Health Program
States have an extensive and complicated shared power relationship with the federal government in regulating various aspects of the health insurance market and in enacting health reforms.
As part of state-based responses to federal health reform legislation, members of at least 11 state legislatures are using the legislative process to seek to limit, alter or oppose selected state or federal actions, including single-payer provisions and mandates that would require purchase of insurance. Based on actions initially in Arizona, several states propose or may propose state constitutional amendments, using language such as:
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"To preserve the freedom of all residents of the state to provide for their own health care… A law or rule shall not compel, directly or indirectly, any person, employer or health care provider to participate in any health care system… "
[see full text in Appendix 1]
Arizona is scheduled to vote on this constitutional amendment next November that, if adopted by voters, could block future state health reforms and at least raise questions about some features within future federal health reforms.
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According to The New York Times, "Conservatives and libertarians, mostly, have been advancing the theory lately that the individual mandate, in which the government would compel everyone to buy insurance or pay a penalty, is unconstitutional." (NY Times, 9/26/09) A current Massachusetts law, passed in 2006, includes an individual mandate, although it was written to be consistent with both state and federal constitutions. To the extent that congressional proposals provide for state opt-out or opt-in features, these proposals to restrict "reform" could well become more widely discussed.
States with 2009-2010 Legislation Opposing Certain Health Reforms
As of late October, formal resolutions or bills had been filed in Arizona, Florida, Indiana, Michigan, Minnesota, New Mexico, North Dakota, Ohio, Pennsylvania, West Virginia and Wyoming. [Click on states in the map for details in Table 1] Up to ten additional states were reported in media or association articles to have discussed future action or intentions; examples are listed below. None of the proposals has been finally approved; Arizona's resolution is the first and only measure to have passed the legislative process.
Because at least 40 of the 50 states have completed their legislative work for 2009 and not all states permit early pre-filing for 2010, much of the information in the examples list below is based on media statements by individual legislators or legislative associations.[1]
The issue has garnered state-level interest in part due to the American Legislative Exchange Council's (ALEC) model "Freedom of Choice in Health Care Act," which was described as "How Your State Can Block Single-Payer and Protect Patients' Rights." The ALEC-endorsed language mirrors Arizona Proposition 101, which was narrowly defeated in 2008.
Several legal experts have expressed opinions on the validity of this approach. [See Appendix 2 for comment and quotes.]
Table 1:
Filed Bills and Resolutions for 2009-2010
Table 1 indicates 1) Activity and status for measures filed;
2) the percentage of affirmative votes in the legislature required for approval;
3) the earliest date that a proposed constitutional amendment can appear on the statewide ballot. Timing and parliamentary steps vary among states.
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The Constitutional process:
In 35 states, the legislature can enact a proposed constitutional amendment during a single session.[Appendix 3] This would allow passed measures to appear on the state ballot in 2010 or later. In 12 states the legislature must enact a proposed constitutional amendment during two sessions, which would make 2012 the earliest date for voter decisions.
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| State |
Activity/Legislation |
Required for Passage |
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Arizona
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Resolution HCR 2014 of 2009 by Rep. Barto to refer to the November 2010 ballot a proposed amendment to the State Constitution "which provides that no law or rule shall compel any person or employer to participate in any health care system, a person or employer may pay directly for lawful health care services and shall not be required to pay penalties or fines for doing so, a health care provider may provide directly purchased lawful health care services; prohibits the terms or conditions of a health care system from imposing certain mandates or limitations." [full text in Appendix 1 below]
(Filed 1/16/09; passed House 6/11/09; passed Senate 6/22/09) Also see 2008 ballot question history, below.
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50% both legislative chambers
(Passed)
2010
ballot vote
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Florida
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HJR 37 (Joint Resolution filed for 2010) by Rep. Plakon. Proposes creation of a State Constitutional amendment to prohibit laws or rules from compelling any person, employer, or health care provider to participate in any health care system; permits person or employer to purchase lawful health care services directly from health care provider, and permits health care providers to accept direct payment from a person or employer for lawful health care services.
(Prefiled 7/27/2009 for 2010 session, by Rep. Plakon)
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60% both legislative chambers
2010 ballot
vote
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Indiana
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SR 65 by Sen. Waltz; SR 91 by Sen. Waltz; SR 111 by Sen. Waltz (Advisory resolutions for 2009) SR 91: Resolved, "That the Indiana General Assembly must ensure that all residents of Indiana may enter into private contracts with health care providers for health care services and may purchase private coverage for health care services. That the Indiana General Assembly should not require an individual to participate in a health care system or plan or impose on an individual a penalty or fine of any type for choosing to obtain or decline coverage for health care services or participating in a particular health care system or plan."
(SR 65 - filed 4/7/09 - did not pass by end of session; SR 91 - filed 4/27/09 - did not pass by end of session; SR 111 - filed 4/28/09 - did not pass by end of session) |
Non-binding
resolution
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Michigan
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SJR K of 2009 by Sen. Kuipers; HJR Z of 2009 by Rep. Amash
Proposes a state constitutional amendment "to affirm the right to independent health care." Includes a statement that "a person or employer shall not be required to pay penalties or fines for paying directly for lawful health care services.
(Filed 8/1/9/09 and 8/29/09; pending in Committee on Health Policy)
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2/3 both legislative chambers
2010
ballot
vote
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Minnesota
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HF 171 by Rep. Emmer, S 325 by Sen. Koch, S 1282 by Sen. Hann
Would propose an amendment to the Minnesota Constitution stating that "no law shall be passed that restricts a person's freedom of choice of private health care systems or private health plans of any type. No law shall interfere with a person's or entity's right to pay directly for lawful medical services, nor shall any law impose a penalty or fine, of any type, for choosing to obtain or decline health care coverage or for participation in any particular health care system or health plan."
(Filed 1/22/09, 3/9/09; did not pass committee by end of 2009 session; subject to carryover to 2010)
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50% both legislative chambers
2010
ballot
vote
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New Mexico
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SJR 1 of 2009 by Sen. Sharer/ HJR 10 of 2009 by Rep. Gardner
Proposed constitutional amendment stating, "No law shall be enacted that: A. restricts a person's freedom of choice of a private health care system or plan; B. interferes with a person's right to pay directly for lawful medical services; or C. imposes a penalty or fine of any type on a person for choosing to obtain or to decline health care coverage or for participation in a particular health care system or plan." | Fiscal Impact Report
(SJR 1 filed 1/21/09; HJR 10 filed 1/28/09; failed to pass by end of session; no carryover)
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50% both legislative chambers
2010
ballot
vote
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North Dakota
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HCR 3010 by Rep. Kasper (Joint Resolution), a proposed 2010 constitutional amendment based on Arizona language.
Would propose an amendment to the State Constitution; relates to freedom of choice in health care; prohibits laws that restrict an individual's choice of private health care systems or private plans, interfere with a person's right to pay for lawful medical services, or impose a penalty or fine for choosing to obtain or decline health care coverage or for participation in any health care system or plan."
(Filed 1/14/09, failed to pass House 3/4/09 by end of 2009 session; no regular session in 2010)
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50% both legislative chambers
future year ballot
vote
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Ohio
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SJR 2 of 2009 by Sen. Coughlin
Proposed constitutional amendment to state, " The people of Ohio have the right to enter into contracts with health care providers ... and to purchase private health care coverage" Would prohibit state laws requiring coverage or imposing fines. For "obtaining or declining" coverage.
(Filed 2/24/09; pending in Senate committee as of 10/29/09)
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60% both legislative chambers
2010
ballot
vote
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Pennsylvania
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HB 2053 by Rep. Baker
Proposed statute "providing for the rights of individuals to purchase private health care insurance and prohibiting certain governmental action." States, "The people shall have the right to enter into private contracts with health care providers for health care services and to purchase private health care coverage. The legislature may not require any individual to participate in any health care system or plan, nor may it impose a penalty or fine, of any type, for choosing to obtain or decline health care coverage or for participation in any particular health care system or plan."
(Filed and sent to Insurance Committee, 10/21/09)
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proposed
statute:
50% both legislative chambers
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West Virginia
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H 3002 by Rep. J. Miller
The "Health Care Freedom Act" states, "The people have the right to enter into private contracts with health care providers for health care services and to purchase private health care coverage. The Legislature may not require any person to participate in any health care system or plan, nor may it impose a penalty or fine, of any type, for choosing to obtain or decline health care coverage or for participation in any particular health care system or plan."
(filed 3/9/09; failed to pass by end of session; cannot carry over to 2010)
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proposed
statute:
50% both legislative chambers
(Did not pass)
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Wyoming
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SJR 3, by Sen. Hines
A proposed 2010 Constitutional amendment based on Arizona language, "that protects individuals, employers and health care providers from having to participate in any health care system." Provides for "freedom of choice in health car; prohibits laws interfering with freedom of choice in health care"
(filed 1/20/09; died in Senate committee 3/3/09)
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2/3 both legislative chambers
2010
ballot
vote |
| Examples of states with reported interest or legislative steps toward a proposed constitutional amendment. |
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No formally filed legislation was reported in these ten states as of early November 2009. NCSL provides links or references to third-party articles and information as a convenience. NCSL is not responsible for the accuracy or completeness of such material. Local news and opinion sources are listed as background only.
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Alaska, 4
Georgia, 4, source
Kansas, 4
Louisiana,4, 5A
Missouri, 4, 10
Mississippi, 4
New Hampshire, 4
Texas, source
Utah 4, 7 and
Wisconsin. [1, 4, 5]
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APPENDIX 1 - The Arizona Proposed Constitutional Amendment
House Engrossed
State of Arizona, House of Representatives
Forty-ninth Legislature, First Regular Session, 2009
HOUSE CONCURRENT RESOLUTION 2014
A CONCURRENT RESOLUTION
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF ARIZONA; AMENDING ARTICLE XXVII, BY ADDING SECTION 2, CONSTITUTION OF ARIZONA; RELATING TO HEALTH CARE SERVICES.
Be it resolved by the House of Representatives of the State of Arizona, the Senate concurring:
1. Article XXVII, Constitution of Arizona, is proposed to be amended by adding section 2 as follows if approved by the voters and on proclamation of the Governor:
2. Health care; definitions
section 2. A. To preserve the freedom of Arizonans to provide for their health care:
1. A law or rule shall not compel, directly or indirectly, any person, employer or health care provider to participate in any health care system.
2. A person or employer may pay directly for lawful health care services and shall not be required to pay penalties or fines for paying directly for lawful health care services. A health care provider may accept direct payment for lawful health care services and shall not be required to pay penalties or fines for accepting direct payment from a person or employer for lawful health care services.
B. Subject to reasonable and necessary rules that do not substantially limit a person's options, the purchase or sale of health insurance in private health care systems shall not be prohibited by law or rule.
C. This section does not:
1. Affect which health care services a health care provider or hospital is required to perform or provide.
2. Affect which health care services are permitted by law.
3. Prohibit care provided pursuant to article xviii, section 8 of this constitution or any statutes enacted by the legislature relating to worker's compensation.
4. Affect laws or rules in effect as of January 1, 2009.
5. Affect the terms or conditions of any health care system to the extent that those terms and conditions do not have the effect of punishing a person or employer for paying directly for lawful health care services or a health care provider or hospital for accepting direct payment from a person or employer for lawful health care services.
D. For the purposes of this section:
1. "compel" includes penalties or fines.
2. "direct payment or pay directly" means payment for lawful health care services without a public or private third party, not including an employer, paying for any portion of the service.
3. "health care system" means any public or private entity whose function or purpose is the management of, processing of, enrollment of individuals for or payment for, in full or in part, health care services or health care data or health care information for its participants.
4. "lawful health care services" means any health-related service or treatment to the extent that the service or treatment is permitted or not prohibited by law or regulation that may be provided by persons or businesses otherwise permitted to offer such services .
5. "penalties or fines" means any civil or criminal penalty or fine, tax, salary or wage withholding or surcharge or any named fee with a similar effect established by law or rule by a government established, created or controlled agency that is used to punish or discourage the exercise of rights protected under this section.
2. The article heading of article XXVII, Constitution of Arizona, is proposed to be changed as follows if approved by the voters and on proclamation of the Governor:
The article heading of article XXVII, Constitution of Arizona, is changed from "REGULATION OF PUBLIC HEALTH, SAFETY AND WELFARE" to "REGULATION OF HEALTH, SAFETY AND WELFARE".
3. The Secretary of State shall submit this proposition to the voters at the next general election as provided by article XXI, Constitution of Arizona.
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Arizona 2008 History/Action: In 2008, Arizona Proposition 101 appeared on the ballot, referred to by proponents as the "Freedom of Choice in Health Care Act." If it had passed, it would have added the following language to the Arizona Constitution: "Because all people should have the right to make decisions about their health care, no law shall be passed that restricts a person's freedom of choice of private health care systems or private plans of any type. No law shall interfere with a person's or entity's right to pay directly for lawful medical services, nor shall any law impose a penalty or fine, of any type, for choosing to obtain or decline health care coverage or for participation in any particular health care system or plan." Proposition 101 failed to pass by a vote of 1,048,512 in favor and 1,057,199 opposed, a difference of 8,687 votes. Arizona's Proposition 101 language from 2008 has served as the basis for 2009 legislative language drafted by the American Legislative Exchange Council (ALEC).
Arizona Opinions: ALEC article: "Arizona Poised to Block Single-Payer Health Care" http://www.alec.org/am/pdf/Inside_July09.pdf
The 2009 legislative resolution was approved "along party lines." “I certainly would expect it would go to the courts as a states' rights issue,” says Bert Coleman, manager of the Arizona campaign. Coleman adds that proponents of the efforts chose to go through the legislative route rather than a much slower citizen petition (as in 2008) process in order to be part of the ongoing discussion over health reform. “We wanted to be part of the debate now,” Coleman stated to Inside Health Policy. “Will it influence the debate? I certainly hope so.”
APPENDIX 2:
Some Legal and Legislative Opinions on Anti-Reform State Actions
Rep. Nancy Barto, chairwoman of the Arizona House's Health and Human Services Committee, sponsored the bill that led to the ballot referendum. Her basic argument is that "there is no place for government between someone and their doctor," said Becky Blackburn, communications director for the Republican Caucus of the Arizona House of Representatives.
Iowa State Rep. Linda Upmeyer, the chair of ALEC's Health and Human Services Task Force stated, "Federal health care reform efforts may include a requirement that individuals purchase health insurance, and a so-called 'public option' which will result in less choices for consumers and new government mandates."
Lawsuits are likely to challenge the mandate as an unprecedented violation of inherent individual rights under the U.S. Constitution in enforcing the purchase of a product "with no other reason other than the fact that you are just living in the country," said Thomas Miller, resident fellow at the American Enterprise Institute. "There's no clear Supreme Court precedent suggesting that this is going to be overturned constitutionally," he said. However, "give me the right five justices and anything's possible. Enforce it in a particularly onerous, all-encompassing, unfair manner and then it's more politically viable for judges to have problems with the way it comes out."[2]
The New York Times cited several legal experts who said "they saw little room for such a challenge:"
Mark A. Hall, professor of law and public health at Wake Forest University, says states don't have the power to override or "opt out" of, or not participate in the mandate. The debate is "a flash in a pan" set off by libertarians who say "Washington, D.C. shouldn't be telling us what to do," he said. “There is no way this challenge will succeed in court,” adding that the state measures seemed more “an act of defiance, a form of civil disobedience if you will.” [2] Hall has studied the constitutionality of mandates that people buy health insurance, for the O'Neill Institute at Georgetown University.
“States can no more nullify a federal law like this than they could nullify the civil rights laws by adopting constitutional amendments,” said Timothy Stoltzfus Jost, a health law expert at Washington and Lee University School of Law. [3, 8]
Randy E. Barnett, a Georgetown law school professor who has written about what he views as legitimate constitutional questions about health insurance mandates, seemed doubtful. “While using federal power to force individuals to buy private insurance raises serious constitutional questions,” Professor Barnett said, “I just don’t see what these state resolutions add to the constitutional objections to this expansion of federal power.” [8]
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Sources: NCSL provides links or references to third-party articles and information as a convenience. NCSL is not responsible for the accuracy or completeness of such material.
[1] American Legislative Exchange Council (ALEC) as quoted in article of August 12, 2009 and NCSL interview with Christie Herrera, ALEC Health Director, August 17, 2009.
[2] Insurance NewsNet: Legal Analysts: "Suits May Challenge Constitutionality of Individual Mandate in U.S. Health Reform," October 8, 2009.
[3] New York Times "Health Care Overhaul and Mandatory Coverage Stir State' Rights Claims," September 29, 2009
[4] CNS News.com, a subsidiary of the Media Research Center. "Nineteen States Move to Defend Individual Health Care Choice," Tuesday, October 27, 2009
[5] Inside ALEC: "Arizona Poised to Block Single-Payer Health Care." Page 11, July 2009
[5A] Marsha Shuler, The Advocate, [Baton Rouge]. [Louisiana state] legislator pushing amendment addressing health-care changes." August 11, 2009
[6] Gov. Perry told Dallas talk radio WBAP's Mark Davis; as reported by the Fort Worth Star-Telegram, 7/23/2009
[7] Deseret News, "Pushing back against feds," August 13, 2009
[8] Politico.com. Professor Randy Barnett and Professor Timothy Jost: "Healthcare: Is 'mandatory insurance' unconstitutional?" Sept. 18 2009:
[9] Inside ARM. State Lawmakers Seek Legislative Solutions to Health Care Reform Mandates - September 28, 2009.
[10] News-Leaeer (Missouri) Lawmakers: Overhaul a threat to freedom. November 15, 2009
APPENDIX 3:
Number of Sessions During Which Legislative Enactment Is Required
In the following 35 states, the legislature enacts a proposed constitutional amendment during only one session.
Alabama Louisiana North Dakota
Alaska Maine Ohio
Arizona Maryland Oklahoma
Arkansas Michigan Oregon
California Minnesota Rhode Island
Colorado Mississippi South Dakota
Florida Missouri Texas
Georgia Montana Utah
Idaho Nebraska Washington
Illinois New Hampshire West Virginia
Kansas New Mexico Wyoming
Kentucky North Carolina
In the following 12 states, the legislature must enact a proposed constitutional amendment during two sessions.
Delaware ** Nevada Tennessee
Indiana New York Vermont
Iowa Pennsylvania Virginia
Massachusetts South Carolina Wisconsin
** Delaware does not require a public vote once a proposed amendment passes two consecutive sessions by a 2/3 vote.
In the following three states, the vote total determines the number of sessions during which a proposed constitutional amendment must be enacted.
Connecticut New Jersey Hawaii
Appendix 3 Source: Brenda Erickson, NCSL Legislative Management memorandum, 2009.
Related NCSL Resource Pages: State Health Reform | Federal Health Reform |