Archive Report:  2009-2010 State Legislation and Actions Challenging Certain Health Reforms

1/1/2018
Data updated through 2014; maintained for archive use through 2018

by: Richard Cauchi, NCSL Health Program


During 2009 and 2010, while the U.S. Congress debated and then enacted the Affordable Care Act, a growing number of state legislatures - ultimately 40 states - considered a variety of bills, proposed costitutional amendments and binding and non-binding resolutions, intended to oppose, opt-out or challenge selected elements of federal and state health reform. 
 

2009-2010 Summary of State Legislation Challenging Health Reform

When the final vote was cast and bills were signed or rejected, the tally was;

  • Seven enacted state statutes
  • Two states had constitutional amendments approved by legislatures and voters.
  • Five states adopted non-binding or advisory resolutions or memorials
  • 30 states rejected or failed to pass proposed binding measures.
 

Staet Legislation challenging health reforms in 2009-2010


































New Laws:  Seven states have signed or enacted statutes in 2010, based on final actions as of January 2011:

  • A Virginia law passed both Senate and House, was amended by the Governor and both branches of the legislature and became law as Chapter 106 on March 10, becoming the first such statute in the nation.*  
  • Idaho enacted a similar statute, signed as Chapter 46 on March 17. 
  • A Utah statute, signed March 22, prohibits any state agency from implementing health reform unless state agencies recommend action or the legislature passes a provision.
  • A Georgia statute addition was substituted during a conference committee and passed by Senate and House on the last day; it was signed into law by the governor on June 2. 
  • Louisiana enacted a statute, declaring that residents "shall be free from governmental intrusion in choosing or declining to choose" health coverage; signed July 2.
  • Arizona enacted a separate statute, similar to their constitutional ballot question for November 2010. (Explained below) 
 

Statute by Ballot Question approved in Missouri

Missouri's Legislature passed a proposed statute, but required that it be put to voters for approval or disapproval on their primary election day, Tuesday August 3, 2010. It was approved by a 71.1 percent yes vote. 
 
Constitutional Ballot Questions passed in two states:
  • Arizona's resolution of June 2009 was the first constitutional ballot question measure to have passed the legislative process; it was approved by voters on November 2, 2010. (Also see statute, listed above).

  • Oklahoma's constitutional amendment ballot question was approved by the Senate and House in May 2010; it was approved by voters on the November 2, 2010 ballot.

Missouri-proposition-c-health-care-Voters in Aug 2010

 

Question Rejected by Voters
  • Colorado: Although the legislature rejected a resolution on the topic, a citizen initiative proposed constitutional amendment was placed on the November 2, 2010 ballot; it was rejected .
Question Rejected by Court:
  • Florida's legislature was the second state to approve a constitutional amendment ballot question, on 4/22/10, for a decision by voters on Nov. 2, 2010. However, in late July a Florida District court ruled the question wording as inappropriate; on August 31 their State Supreme Court agreed that the question must be removed from the ballot.  

Non-binding measures:

South Dakota passed a resolution opposing "government take-over" of health care. South Carolina adopted a resolution opposing health mandates and directing the attorney general to challenge such provisions in federal health reform. A Michigan Senate resolution urging removal of financial obligations passed in January 2010.  Idaho called for adding a U.S. Constitutional Amendment to provide that Congress shall make no law requiring citizens of the United States to enroll in, participate in or secure health care insurance or to penalize any citizen who declines to purchase or participate in any health care insurance. Florida's  non-binding Senate resolution urges the U.S. Congress to amend Medicaid law in order to "reestablish a fair and prudent federal-state partnership" that allows each state "the freedom to craft a Medicaid program that meets the needs of its residents" without mandatory expansion and enables states to provide cost-effective health care services to low-income residents. Oklahoma SJR 64 was a non-binding resolution authorizing legislative leaders to “employ legal counsel to file a lawsuit to prevent the provisions” of  federal health care from taking effect.

Measures That "Did Not Pass:" 

For the 2009-2010 legislative sessions, 30 states have failed to pass or have rejected bills and resolutions (29 states in 2010, one in 2009)
For 2010 sessions, the states are: Alabama, Alaska, Arkansas, California, Colorado, Delaware, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Michigan, Minnesota, Mississippi, Nebraska, New Hampshire, New Mexico, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Washington, West Virginia, Wisconsin and Wyoming. A 2009 North Dakota constitutional proposal did not pass by the end of their session. If additional special sessions, reintroductions or reconsideration motions are filed, they will be added to this report. 

 

The Arizona Constitutional Amendment- Used as an example in aboiut 30 other states in 2009-2011  [Excerpt]

"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 …  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..."
    [see full text in Appendix 1]

Arizona voters are scheduled to cast ballots on this constitutional amendment in November 2010. 

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. 

Arizona resolution passed 2009
Arizona plans constitutional amendment on health reform. Photo copyright Joshua Lott for The New York Times, 2009. Fair Use.

NCSL Spring Forum
April 9, 2010 - Richard Cauchi -
PowerPoint PresentationAdobe PDF logo

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. 

 

State Activity/Legislation Required for passage
 Alabama

HB 42 by Rep. Bentley; HB 47 by Rep. Gipson; HB 498 by Rep. Galliher; SB 233 by Sen. Beason. 
Would propose a constitutional amendment to prohibit any person, employer, or health care provider from being compelled to participate in any health care system.
(HB 42 prefiled 11/5/09 for 2010 session; sent to Health Committee 1/12/10; did not pass by end of session 4/22/10
(SB 233 filed 1/13/10; Passed Senate, sent to House 4/1/10; did not pass by end of session 4/22/10

60% both legislative chambers
+
2010 ballot vote
 Alaska

HJR 35 by Rep. Kelly filed for 2010 session
Would propose a state constitutional amendment prohibiting passage of laws that interfere with direct payments for health care services and the right to purchase health care insurance from a privately owned company, and that compel a person to participate in a health care system.
(Filed 1/19/10; favorable House committee reports 3/12/10; failed passage 22y-18n 4/15/10)

2/3rds both  legislative chambers
+
2010 ballot vote

HR 14 by Rep. Chenault
Would urge the United States Congress to oppose federal health care reform bills.
(Filed 2/17; re-referred to House Comm. 3/19/10; did not pass by end of session)

Non-binding
resolution; majority vote

 Arizona
 (2009)
 

 

 


 

 Arizona
 (2010)

Resolution HCR 2014 of 2009 by Rep. Barto
Refers 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;  passed by voters, 55.4% Yes to 44.7% No, on Nov. 2, 2010 ballot.)  Also see2008 ballot question history, below.

50% both legislative chambers
(Passed)

2010 ballot vote

SB 1001  
Added by state statute the "public policy that every person in this state... may choose or decline to choose any mode of securing lawful health care services without penalty or threat of penalty.”   Also protects “any right of contract related to the provision of lawful health care services to any person or group".  “A public official or an employee or agent of this state or any political subdivision of this state shall not act to impose, collect, enforce or effectuate any penalty in this state that violates the public policy prescribed in this section.”
(Substituted by committee; Signed into law by governor as Chapter 1, 4/1/2010.)

HB 2443 by Rep. Burges
Would add by state statute the Health Care Freedom of Choice Act requiring Arizona to exercise its option to decline the public health care plan if authorized by the federal government.
(Filed and sent to committees 1/26/10; did not pass by end of session)

Proposed statute:
majority both
legislative chambers

 Arkansas

ISP 2009-204 by Rep. Glidewell (Interim Study Proposal for 2010 Fiscal Session)
Would add a state statute to "ensure freedom of choice in health care" for state residents; "to prevent involuntary enrollments in health care insurance programs" and providing that an "individual or an employer may make direct payment for lawful health care services and shall not be required to pay penalties or fines" for making direct payment for health services.
(Filed 12/17/09 for 2010 session; 2010 regular session ended without action on any language)

Proposed statute:
majority both
legislative chambers

 California

SCA 29 by Sen. Strickland
Would propose a state constitutional amendment prohibiting the effectiveness or enforcement of a state or federal program that (1) requires individuals to obtain health care coverage, (2) requires health care service plans or health insurers to guarantee issue contracts and policies to all applicants, (3) requires employers to either provide health care coverage to their employees or pay a fee or tax to the state or the federal government in lieu thereof, (4) allows an entity created, operated, or subsidized by the government to compete with health care service plans and health insurers in the private sector, or (5) creates a single-payer health care system, unless the program is approved by the electorate by ballot measure.
(Filed 2/19/10; did not pass Senate Comm. 3y-6n, 5/5/10)

2/3rds  both legislative chambers
+
2010 ballot vote
 Colorado

HJR 10-1009 by Rep Acree
Resolution stating the intent of the General Assembly, to "Reserve the opportunity and ability of the State of Colorado and its citizens, under the state's and the people's Tenth Amendment rights, to opt out of any obligations due or participation required in any new federal health care legislation.
(Filed  2/5/10; Judiciary Comm. did not pass -postponed indefinitely 3/11/10)

50% both legislative chambers
 
Ballot Amendment 63
A separate citizen initiative petition was circulated in summer 2010 and certified by the Secretary of State to appear on the November 2, 2010 ballot. 

It stated: “(1) All persons shall have the right to health care choice, no statute, regulation, resolution, or policy adopted or enforced by the state of Colorado, its departments and agencies, independently or at the instance of the United States shall: (a) require any person directly or indirectly to participate in any public or private health insurance plan, health coverage plan, health benefit plan, or similar plan; or (b) deny, restrict, or penalize the right or ability of any person to make or receive direct payments for lawful health care services.”
(News articles:  Ballot amendment 63 "Two sides of the debate"  >  Vote "YES - Stand up to D.C."  versus  Vote "NO - It won't hold down health costs"

No legislative role; requires 2010 ballot vote
 Delaware
 (2010)

HB 353 by Rep. Hudson
Would add a state statute providing the following:
"The people of Delaware have the right to enter into private contracts with health care providers for health care services and to purchase private health care coverage. The United States Congress may not require any person to participate in any health care system or plan, nor may it impose a penalty, fine, tax, surcharge, or fee of any type for choosing to obtain or decline health care coverage or for participation in any particular health care system or plan. Only the State of Delaware has the legal authority to regulate private health care insurance, systems, plans, and services for the people of Delaware within its borders."
(Filed 3/30/10; held in House Administration Comm.; did not pass by end of regular session 6/30/10; may be considered in special session)

HCR 28 by Rep. Hudson
A non-binding resolution, stating opposition to the passed federal health reform;  maintaining that the federal government does not have the authority to impose a federal healthcare program and urges the U.S. Congress to pursue less costly and more viable alternatives to reduce the cost of healthcare and increase its availability. Also states that "should the 111th Congress decide to enact a federal healthcare entitlement, it would urge Delaware’s Congressional delegation to advocate for a provision that would require states to choose to “opt-in” to the program.
(Filed and sent to committee 3/18/10; no action; held in committee; did not pass by end of regular session 6/30/10; may be considered in special session)

State statute; 50% majority vote

 

 

 

Non-binding resolution;
50% majority vote

 Florida

HJR 37 (Joint Resolutions filed for 2010) by Rep. Plakon; 39 co-sponsors; 
SJR 72 by Sen Baker.
Joint resolutions propose 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.
(HJR 37 prefiled 7/27/2009 for 2010 session; substituted; passed House; passed Senate; enrolled; 4/22/10; was directed to appear on the November 2, 2010 state ballot for voter approval or disapproval)  This ballot question, Amendment 9, was ordered removed from the ballot by the Florida District Court in late July; on August 31 the Florida State Supreme Court agreed and orderd that the question wording was inappropriate and must be removed from the ballot [text of court ruling,  No. SC10-1527]  [Article by AP, 9/1/10] 
(SJR 72 prefiled 10/5/09; favorable comm. report 3/4/10 substituted by HJR 37 above)
NOTE: SB 10 separately calls for a United States Constitutional Convention to address various matters related to a balanced Federal Budget, including health care expenditure requirements.
(Passed Senate and House; enrolled and signed, 5/5/10)

60% both legislative chambers
+
2010 ballot vote

 Georgia
 

 

 

 

 

 

 
 

 

 Georgia

2010 resolutions: HR 1086 by Rep. Calvin Hill; HR 1107 by Rep. Mills;
SR 794 by Sen. Hill; SR 795 by Sen. Harp.
Would propose an amendment to the Constitution so as to provide that no law or rule or regulation shall compel any person, employer, or health care provider to participate in any health care system and to authorize persons and employers to pay directly for lawful health care services without penalties or fines; would provide for submission of the amendment for ratification or rejection.
SR 795 would provide that residents would not be subject to penalties or fine for not having health insurance.
(Prefiled 11/23/09 for 2010 session;  HR 1086 favorable report 3/11/10; did not pass House 3rd Reading 111y-61n-3nv, 3/18/10; motion to reconsider vote  granted 110y-58n-6nv, 3/24/10)  2/3rd affirmative vote required; did not pass by end of session 4/29/10)
SR 795 favorable report by Senate Judiciary 2/2/10; did not pass by end of session 4/29/10)SR 794 did not pass Senate 3rd reading 31y-19n, 3/18/10)

2/3rds  both legislative chambers
+
2010 ballot vote

 

SB 317 by Sen. Hill          
Would  establish by statute that "no law or rule or regulation shall compel any person, employer, or health care provider to participate in any health care system;" to authorize persons and employers to pay directly for lawful health care services without penalties or fines.
(SB 317 filed 1/25/10; favorable Comm. report 2/10/10; passed Senate  31y-16n; did not pass by end of session 4/29/10))

SB 411 with amendment 37-1032S by Sen. Hill
Wellness discounts bill; amended, inserting similar language from SB 317 by Sen. Judson Hill. 
Establishes by statute that "no law or rule or regulation shall compel any person, employer, or health care provider to participate in any health care system;" to authorize persons and employers to pay directly for lawful health care services without penalties or fines.  The intent is that state residents would not be forced to comply with the mandates in the federal health care reform law.
(House amendment, added and passed 4/27/10; 4/29/10 (AM21-3736)  passed Senate 4/29/10; signed into law by governor 6/2/10 [Bill history]

SR 829 and SR 830 by Sen. Hill.   (Substituted and approved by conference committee;
Resolutions would direct the Attorney General to "initiate a formal investigation into the constitutionality of the special exemption set forth in the United States Senate's version of this national health care legislation and explore the availability of all other legal challenges.
(Filed 1/15/10; Senate 2nd reading 2/11/10; did not pass by end of session 4/29/10)

Statute:
majority both
legislative chambers


 

 

 

 

 
 

Resolutions; majority vote

 Idaho

HB 391 by State Affairs Comm.
Amend and add to existing law to establish the Idaho Health Freedom Act, stating in part, "that every person within the state of Idaho is and shall be free to choose or decline to choose any mode of securing health care services without penalty or threat of penalty."  "No public official, employee, or agent of the state of Idaho or any of its political subdivisions, shall act to impose, collect, enforce, or effectuate any penalty..."
(Filed 1/19/10; passed House 52y-8n, 2/9/10; amended; passed Senate 24y-10n & enrolled, 3/12/10; signed into law by governor as Session Law Chapter 46, 3/17/10)

Statute:
majority both
legislative chambers

SJM 106 by State Affairs Committee
Non-binding memorial stating findings of the Legislature urging Congress to take action to amend the United States Constitution to provide that "Congress shall make no law requiring citizens of the United States to enroll in, participate in or secure health care insurance or to penalize any citizen who declines to purchase or participate in any health care insurance program."
(Filed  3/26/10; passed Senate and House 3/29/10)

Memorial to Congress
 Illinois
 (2010)

H 6842 by Rep. Mitchell
Would  provide by statute that no resident of the State, regardless of whether he has or is eligible for health insurance coverage  shall be required to obtain or maintain individual insurance except as required by a court or a State agency
(Filed and sent to committee 3/26/10; pending; held in Rules Comm. as of 1/3/2011)

Statute:
majority both
legislative chambers

HR 1074 by Rep. Bellock
Would request that the IL Commission on Government Forecasting and Accountability examine the provisions of the federal health care reform law to determine the fiscal impact of the provisions on the budget of the State.
(Filed and sent to Rules Committee, 3/26/10; placed on calendar  4/28; held in Rules Comm. as of 1/3/2011)

Non-binding
 resolutions

HR 1075 by Rep. Bellock
Would urge the IL Attorney General to take steps necessary to file a suit challenging the constitutionality of the federal Patient Protection Affordable Care Act.
(Filed and sent to Rules Committee, 3/26/10; pending; held in Rules Comm. as of 1/3/2011))

 Indiana 
 (2009)
 

 

  

  

 Indiana 
 (2010)

SJR 65 by Sen. Waltz; SJR 91 by Sen. Waltz; SJR 111 by Sen. Waltz (Advisory resolutions for 2009) 
SJR 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; Indiana does not carry over bills or resolutions to 2010)

Non-binding
 resolutions

SJR 14 by Sen. Krause, HJR 6 by Rep. Noe; HJR 8 by Rep. Turner; also non binding resolution SCR 10
Would propose a state constitutional amendment stating, "A person, an employer, or a health care provider shall not be compelled, directly or indirectly, to participate in any health care system.   A person or an employer may pay directly for lawful health care services and shall not be subject to penalties or fines for paying directly for lawful health care services.  A health care provider may receive direct payment for health care services from a person or an employer and shall not be subject to penalties or fines for accepting direct payment from a person or an employer."
SCR10 - nonbinding resolution passed Senate 2/1/10; did not pass House Committee)
(Filed 1/11/10; did not pass by end of regular session deadline 3/3/10)

50% both legislative chambers
+
2012  ballot vote

 Iowa

HJR 2007 by Rep. Upmeyer
Would propose a state constitutional amendment prohibiting passage of laws that interfere with direct payments for health care services and the right to purchase health care insurance from a privately owned company, and that compel a person to participate in a health care system.
(Filed 1/26/10; did not pass  by end of session 4/12/10)

50% both legislative chambers
+
2012 ballot vote

HF 2117 by Rep. Sorensen;  HF 2214 by Rep. Upmeyer; S 2139 by Sen. Zaun
Would  establish by statute that the people of Iowa have the right to enter into contracts with health care providers for health care services and to purchase private health care coverage.  In addition, the general assembly cannot require any person to participate in any health care system or plan, or impose any type of penalty or fine on any person for choosing to obtain or declining to obtain health care coverage or for participating or declining to participate in any particular health care system or plan.
(Filed 1/26/10; HF 2214 motion to expedite failed 44y-53n, 2/12/10; did not pass  by end of session 4/12/10)

Proposed statute:
majority both
legislative chambers

 Kansas

HCR 5032 by Rep. Landwehr; SCR 1626 by Sen. Pilcher-Cook
Would propose a state constitutional amendment providing that 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 or purchase health insurance.  ‘‘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."
(Filed & sent to committees 2/2/10, 2/17/10: HCR 5032 did not pass House 74y-47n by required 2/3rds vote, 3/24/10;  SCR 1626 withdrawn from and returned to Judiciary committee, 2/17/10)

2/3rds both legislative chambers
+
2010 ballot vote

 Kentucky

HB 307 by Rep Moore
Would prohibit by statute any other law "from requiring any individual to participate in any health care system or plan, or to impose a penalty or fine regarding participation; permit an individual or an employer to pay directly for health care services and a health care provider to accept direct payment without penalties or fines.  Also would prohibit the state executive branch from "participating in or complying with any federal law, regulation, or policy that would compromise the freedom of choice in the health care."
(Filed 1/21/10; sent to Banking & Insurance Comm. 1/26/10; discharge from committee petition filed 3/24/10; did not pass by end of session 4/15/10)

Proposed statute:
majority both
legislative chambers

 Louisiana







 

 

 


 Louisiana

HB 1474 by Rep. Talbot
Prohibits by state statute any state resident from being required to purchase health insurance coverage; provides that it is a declared public policy of the state that every person within the state is and shall be free from governmental intrusion in choosing or declining to choose any mode of security health insurance coverage without a penalty or threat of penalty.
(filed 5/6/10; signed into law by governor  as Act 952, 7/2/10)

SB 26 by Sen. Crowe
Would prohibit by statute any other law requiring a "person,  employer, health care provider to participate" in a health system or insurance system; also would prohibit compelling participation in any health care system or health insurance plan.  Would establish a misdemeanor offense and penalty ($500 or five day in prison) for any state or local official who "attempts to coerce any individual to purchase health insurance."
(Filed and sent to Sen. Health and Welfare 3/5/10; did not pass by end of session) 5A

Proposed statute:
majority both
legislative chambers

HB 94 by Rep. Talbot
Would propose a state constitutional amendment to prohibit laws or rules that would compel "any person, employer, or health care provider to participate in any health care system"; would allow the direct payment of health care services; also such persons, employers or providers would "not be required to pay penalties or fines" for buying or selling health services.
(Prefiled 3/4/10; House ordered to 3rd reading; did not pass by end of session)

2/3rds both legislative chambers
+
2010 ballot vote

  Maryland

HB 603 by Rep. Shenk; SB 397 by Sen. Pipkin
Would propose a state constitutional amendment limiting the regulation of health care in the state; prohibiting a law from compelling residents to participate in any health care system; prohibiting residents from being required to pay penalties or fines for not participating in health insurance; specifying that the purchase or sale of specified health insurance may not be prohibited by law; authorizing residents to pay directly or accept direct payment for specified health care services.
(Filed 1/29/10; HB 603 unfavorable report, did not pass Health & Govt. Op. Committee, 3/26/10)  (SB 397 did not pass Comm. 3/29/10)

60% both legislative chambers
+
2010 ballot vote

HB 1563 by Rep. Dwyer
Would provide by statute any other law requiring a "person, employer, health care provider to participate" in a health system or insurance system;, a person has the right to choose to participate in a private health insurance system or plan; establishes that, notwithstanding specified provisions of law and subject to a specified exception, a person has the right to pay for lawful medical services without interference and a penalty, tax, fee, or fine may not be imposed on a person who declines to contract for health insurance coverage.
(Filed and sent to committee 3/21/10; did not pass by end of session 4/20/10)

Proposed statute:
majority both
legislative chambers

  Michigan

SJR K of 2009 by Sen. Kuipers; HJR CC by Rep. Calley;  HJR Z of 2009 by Rep. Amash
Would propose 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, 8/29/09 and 9/9/09; pending in Committee on Health Policy; no floor vote in 2009;  carried over to 2010)  SJR K  2nd Reading and committee substituted; failed to pass 3rd Reading; reconsidered 3/16/10; no further actions as of 5/21/10)

2/3 both legislative chambers
+
2010 ballot vote

  Minnesota         

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; did not pass committees by end of 2010 session 5/17/10)

Executive Order 10-12: In an action unrelated to the legislature "Governor Pawlenty signed an Executive Order "Directing State Agencies to Decline All Discretionary Participation" in Federal health reform – 8/31/2010.

50% both legislative chambers
+
2010 ballot vote

  Mississippi

HCR 17 by Rep. Monsour; SCR 562 by Sen. Nunnelee
Resolution, would propose a constitutional amendment to prohibit laws compelling any person, employer or health care provider to participate in any health care plan. Would  provide that 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."
(Filed; sent to Committee on Constitution 1/7/10; HCR 17 and SCR 562 died in committee 2/2/10)

2/3 both legislative chambers
+
2010 ballot vote

  Missouri

HJR 48 by Rep. Davis; HJR 50 by Rep. Ervin; HJR 57 by Rep. Jones Ti;
SJR 25 by Sen. Cunningham;
Joint resolutions, would propose a constitutional amendment which would prohibit compelling a person to participate in any health care system. "Upon voter approval, this proposed constitutional amendment prohibits any person, employer, or health care provider from being compelled to participate in any health care system. Individuals and employers may pay directly for lawful health care services, and health care providers can accept payment for health care services from individuals or employers without being subject to fines or penalties. The purchase or sale of health insurance in private health care systems cannot be prohibited by law or rule.  Committee substitute added definitions
(Prefiled 1/6/10 for 2010 session; HJR 48 House resolutions combined & passed House 109y-46n, 3/16/10; pending in Senate 5/12/10)
( SJR 25 substituted; favorable comm. report 3/16/10); session adjourned 5/25/10 without further action) 

50% both legislative chambers
+
2010 ballot vote

HB 1764 by Sen. Cunningham  [final full text]
Proposed state insurance statute amendment to prohibit "any person, employer, or health care provider from being compelled to participate in any health care system. Individuals and employers may pay directly for lawful health care services, and health care providers can accept payment for health care services from individuals or employers without being subject to fines or penalties.
The summary for voters reads, "Shall the Missouri Statutes be amended to:  Deny the government authority to penalize citizens for refusing to purchase private health insurance or infringe upon the right to offer or accept direct payment for lawful healthcare services?"
(Senate substituted language prohibiting "compelling" participation in health insurance. Passed Senate 26y-8n, 5/4/10; passed House 5/11/10, 5/11/10; approved on August 3, 2010 primary election ballot by voters, 71.1% yes)  Vote Results Here
> Legislative News release5/11/10.
>
With Prop C, Missouri voters will be first in nation to weigh in on health-care reform. Includes NCSL material.  - St. Louis Beacon - July 28, 2010

State Statute placed on voter ballot for approval in August 2010.

  Nebraska

LR 289CA by Sen. McCoy
Proposed constitutional amendment stating "no law shall be passed that: (1) Restricts a person’s freedom of choice of private health care systems or private health plans of any type; (2) Interferes with a person’s or an entity’s right to  pay directly for lawful medical services; or (3) Imposes a penalty or fine of any type for choosing to obtain or decline health care coverage."
(Filed 1/13/10; postponed indefinitely; did not pass by end of session 4/14/10)

60% both legislative chambers
+
2010 ballot vote

  New Hampshire

CACR 30 of 2010 by Rep. Renzullo
Would propose a state constitutional amendment to establish a right stating, "People may enter into private contracts with health care providers for health care services and to purchase health care coverage." Also would prohibit the state legislature from requiring health insurance or imposing any fine or penalty for not having coverage.
(Filed 1/6/10; did not pass as "inexpedient to legislate" 2/3/10)

60% both legislative chambers
+
2010 ballot vote with 2/3rds popular vote

Also see Financing category below

  --
   New Jersey

ACR 109 by Assemblymember Mchose; SCR 81 by Sen. Doherty
Would propose a state constitutional amendment to prohibit state or federal law or regulation from compelling a person to obtain, provide, or participate in health care coverage.
(New Jersey 's constitution requires a three-fifths vote in each chamber at one session [2010], or majority vote in each chamber for two successive sessions [for 2012])
(ACR 109: Filed 2/25/10; held in in commerce committee as of 1/3/2011)    
(SCR 81: Filed 2/25/10; held in health and human services committee as of 1/3/2011)

Both legislative chambers
+
ballot vote
(see note)

   New Mexico
   (2009)

 

 

 

   New Mexico
   (2010)

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."  
(SJR 1 filed 1/21/09; HJR 10 filed 1/28/09; failed to pass by end of session; no carryover)

50% both legislative chambers
+
2010 ballot vote

HJR 5 by Rep. Gardner; SJR 2 by Sen. Sharer
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."  
(Filed 1/20/10; failed to pass by end of regular session 2/10)

  North Carolina

HJR 1674 by Rep. Stam; SJR 1134 by Sen. Clary
Proposed Joint Resolution Authorizing the 2009 General Assembly to Consider a  Bill To Be Entitled An Act To Protect The Freedom to Choose Health Care And Health Insurance.
(Filed 5/17/10; Did not pass by end of 2010 session)

Proposed bill, majority vote required

SB 1157 by Sen. Forrester
Proposed constitutional amendment stating, "A law or rule shall not compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system. (b) 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."
(Filed 5/17/10; Did not pass by end of 2010 session)

50% both legislative chambers
+
2010 ballot vote

  North Dakota

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)

50% both legislative chambers
+
future year ballot
vote

  Ohio

SJR 2 of 2009 by Sen. Coughlin; SJR 7 by Sen. Grendell; HJR 3 by Rep. Maag
Joint resolutions for a 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.
(SJR 2 filed 2/24/09; held in Senate committee; did not pass by end of session1/4/11)
(SJR 7 filed 9/29/09; held in Senate Insurance &  Commerce Comm. as of 1/3/2011)
(HJR 3 filed  8/26/09; sent to Insurance Comm. 9/15/09; carried over to 2010; held in comm. as of 1/3/2011)

60% both legislative chambers
+
2010 ballot vote

HB 489; SB 244
Would prohibit requiring an individual to obtain or maintain a policy of health insurance. 
(Filed 4/14/10; pending;' held in original comm. as of 1/3/2011)

Proposed statute:
majority both
legislative chambers

  Oklahoma

SJR 59 - Binding Joint Resolution for a separate 2010 constitutional amendment ballot question establishing as state policy that, "A law or rule shall not compel, directly or indirectly, any person, employer or health care provider, to participate in any health care system;  A person or employer ... shall not be required to pay penalties or fines for paying directly for lawful health care services..."
Conference Comm. report; approved by Senate by 30y-13n, 5/5/10; approved by House  by 88y-9n and sent to Secretary of State 5/26/10; passed by voters on the November 2, 2010 ballot as Question #756)

HJR 1054 by Rep. Ritze; SJR 56 ; SJR 59 by Sen. Newberry
Joint resolution for a proposed constitutional amendment stating, "A law or rule shall not compel, directly or indirectly, any person, employer or health care provider to participate in any health care system; and A person or employer may pay directly for lawful health care services and shall not be required to pay penalties or fines" for lack of insurance.
    HJR 1054 was amended  by conference committee: it would enact a statute instead of a constitutional amendment. Also directs the state Attorney General to file a lawsuit against the federal government to prevent legislation regarding federal health insurance;
(HJR 1054 filed 12/22/09; passed House 77y-10n, 3/11/10;  enacting clause stricken, which nullified effect of the resolution; passed Senate 36y-11n, 3/23/10 ; Statute version favorable conference committee report, 4/19/10; approved by House 4/28/10; approved by Senate 4/29/10; vetoed by governor; veto overridden by House 5/18/10; veto override  did not pass in Senate, 5/21/10)

SCR 64 by Sen. President Pro Tempore Coffee and House Speaker Benge
Non-binding resolution authorizing legislative leaders to “employ legal counsel to file a lawsuit against the United States Congress, the President of the United States of America, and the Secretary of the United States Department of Health and Human Services to prevent the provisions” of  federal health care from taking effect.
(Adoped by Senate by 29y-17n; adopted by House by 63y-19n; certified as passed)

(SJR 59 Conference Comm. report for a separate 2010 constitutional amendment ballot question approved by Senate by 30y-13n, 5/5/10; approved by House  by 88y-9n and sent to Secretary of State 5/26/10; passed by voters on the November 2, 2010 ballot as Question #756)

Oklahoma article:  Question 756: Voters will have health care 'opt out' amendment in November - 9/8/2010

50% both legislative chambers
+
2010 ballot vote

 

- - - - - - - - -

HJR 1054
majority both
legislative chambers

SJR 58 by Sen. Coffee
Petitions the federal government to opt-out of certain mandates; and for certain waivers and block grants.
(Filed 2/1/10; passed Senate 35y-11n, 2/22/10; did not pass by end of session 5/28/10)

SJR 64
Directs the Attorney General to file a lawsuit against the federal government to prevent legislation regarding federal health insurance; directs distribution.
(Filed 2/1/10; passed Senate 29y-16n, 2/24/10; did not pass by end of session 5/28/10)

Non-binding
 resolutions

   Pennsylvania

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; no floor vote in 2009;  carried over; did not pass by end of 2010 session)

Proposed statute:
majority both
legislative chambers
 

   Rhode Island

S 2544 and S 2747 by Sen. Blais
Would provide that no law would restrict a person's ability to contract with, pay for, and/or otherwise select a private health care system or private plan of that person's choosing; would take effect upon passage.
(Filed and sent to committee 2/11/10; committee "held for further study"; did not pass  by end of 2010 session 4 /28/10)

Proposed statute:
majority both
legislative chambers

  South Carolina

HJR 4181 by Rep. Scott; HJR 4240 by Rep. Duncan; HJR 4602 by Rep. Viers; SJR 980 by Sen. Bright; SJR 1010 by Sen. Rose.
Resolution for a proposed constitutional amendment, "prohibiting any law, regulation, or rule to compel an individual, employer, or health care provider to participate in a health care system, by allowing individuals and employers to pay directly for lawful health care services without penalties or fines for these direct payments, by providing that the purchase or sale of health insurance in private health care systems must not be prohibited by law, regulation, or rule."
The resolution title states, "... to preempt any federal  law or rule that restricts a person's choice of private health care providers or the right to pay for medical services."
(HJR 4181 filed for 2010 session; sent to Committee on Labor, Commerce and Industry, 11/17/09; held/pending 5/31/10; session adjourned without further action 6/3/10; state wide session to be held 6/15/10) 
(SJR 980 and SJR 1010 filed; sent to Senate Judiciary Committee 1/12/10; favorable report 3/30/10; session adjourned without further action 6/3/10; state wide session to be held 6/15/10) 


SB 987 by Sen Rose. 
By statute would provide that citizens “have right to enter into private contracts with health care providers for health care services and to purchase private health care coverage. The General Assembly may not require a person to participate in any health care system or plan and may not 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.”
(Favorable Senate Judiciary Committee report 3/31/10; held/pending 5/31/10; session adjourned without further action 6/3/10; state wide session to be held 6/15/10) 

50% both legislative chambers
+
2012 ballot vote

 

 

 

 

 Proposed statute: 
majority both legislative chambers

SCR 424 by Sen. Bright
Senate concurrent resolution referencing state sovereignty under 9th and 10th Amendments. Resolves "that it is the policy of the State" that "no law shall interfere with the right of a person to be treated by or receive services from a health care provider of that person's choice; no law shall restrict a person's freedom of choice of private health care systems or private health care plans of any type; no law shall interfere with a person's or an entity's right to pay directly for lawful medical services; and no law shall impose a tax, penalty, or fine, of any type, for choosing a health care provider."  
    States that "the Attorney General will challenge constitutionality of any provision adopted by U.S. Congress" that violates these policies; also "no state agency, agent, department, instrumentality, or subdivision shall cooperate or participate in any way with any mandate passed by U.S. Congress"  if a court challenge is filed.
(Adopted by Senate and House with amendments, 3/9/10)

resolution; majority vote; no signature needed

  South Dakota

HJR 1001 by Rep. Jensen
Resolution for a proposed constitutional amendment, stating "The Legislature may not enact a law that restricts an individual's freedom of choice of private health care systems or private plans of any type; a law that interferes with a person's right to pay directly for lawful medical services; or a law that imposes 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 1/28/10; sent to committees 2/10/10; did not pass committee "deferred " past end of session, 2/18/10)

50% both legislative chambers
+
2010 ballot vote

SCR 1 by Sen. Brown
Would oppose "the government takeover of health care as currently proposed by Congress" and encouraging preservation of states' rights regarding health care regulation, urging "not to adopt either measure or institute new federal review, oversight, or preemption of state health insurance laws."
(Filed 1/28/10; passed Senate 22y-10n, 2/1/10; passed House 44y-24n, 2/3/10)

 Non-binding resolution

  Tennessee

SB 2490 by Sen. Black; SB 2560 by Sen. Black; SB 3498 by Sen. Beavers;  HB 2622 by Rep. Lynn; HB 2654; HB 3433 by Rep. Bell
Would amend state law by adding a "Tennessee Freedom of Choice in Health Care Act.”
(SB 2560, HB 2622 assigned to committees, 2/22/10, 3/17/10; ; did not pass by end of session 6/10))
SB 3498 passed Senate engrossed, 29Y-1n, 2/22/10; did not pass House by end of session 6/10)

Proposed statute: 
majority both legislative chambers

HJR 0745 by Rep. Lynn
Resolution for a proposed constitutional amendment, stating  -  Prohibits laws or rules that would compel any person, employer, or health care provider to participate in any health care system.
(Filed 1/21/10; sent to committees, 2/22/10; held; did not pass House by end of session 6/10)

50% both legislative chambers
+
2012 ballot vote

SJR 897 by Sen. Ramsey
Would request that the TN Attorney General join other States in contesting the implementation of the federal health care legislation that was signed into law on March 23, 2010.
(Filed 3/25; adopted in Senate 21y-8n, 4/12/10; ; did not pass House by end of session 6/10)

Non-binding resolution

  Utah 

H 67 for 2010 session by Rep. Wimmer
Amends statute provisions related to the state's strategic plan for health system reform to respond to federal reform efforts; prohibits a state agency or department from implementing any provision of the federal health care reform without reporting to the Legislature: 1) the the specific federal statute or regulation that compels the state to adopt the particular provision; 2) consequences to the state if the state refuses to adopt the particular federal provision; and 3) impact to the citizens of the state if reform efforts are implemented or not implemented.

[Section deleted from final law:] 4) would require any agency of the state not to implement any part of federal health care reform passed by the US Congress after March 1, 2010, unless the department or agency reports to the Legislature and the Legislature passes legislation "specifically authorizing the state's compliance or participation in, federal health care reform."
(Passed House amended , 53y-20n, 2/11/10; passed Senate 22y-7n; signed into law by governor  3/23/10)     News articles 4, 7

Statute: 
majority both legislative chambers

 

HCR 8 by Rep. Clark
Urges Congress to refuse to pass any health care legislation that contains certain provisions, urges Congress to pass health care legislation with specific provisions, and urges Congress, should it pass health reform legislation that further restricts states, to grandfather certain state laws, regulations, and practices.
(Filed 1/25/10; signed into law by governor, 3/22/10)

HJR 11 by Rep. Morley
Urges the United States Congress to refrain from passing certain federal health insurance reforms.
(Filed 1/25/10; Passed House 51y-21n, 2/8/10; passed Senate 18y-8n, 2/18/10)

Non-binding resolution

  Virginia

 

 

 

 

 

HJ 7 by Del. Marshall
Resolution for a proposed constitutional amendment, to protect "an individual's right and power to participate or to decline to participate in a health care system or plan;  prohibiting any law that will infringe on an individual's right to pay for lawful medical services and  prohibiting the adoption of any law that imposes a penalty, tax, or fine upon an individual who declines to enter into a contract for health care coverage or to participate in a health care system or plan.
(Filed for 2010 and sent to committee 12/9/09; did not pass)  [Also see bills below]

50% both legislative chambers
+
2012 ballot vote

SB 283 by Sen. Quayle;  SB 311 by Sen. Martin; SB 417 by Sen. Holtzman Vogel, HB 10 by Del. Marshall.
Amends state law by adding a section, "Health insurance coverage not required. No resident of this Commonwealth, regardless of whether he has or is eligible for health insurance coverage under any policy or program provided by or through his employer, or a plan sponsored by the Commonwealth or the federal government, shall be required to obtain or maintain a policy of individual insurance coverage.  No provision of this title shall render a resident of this Commonwealth liable for any penalty, assessment, fee, or fine as a result of his failure to procure or obtain health insurance coverage."  It does not apply to Medicaid and CHIP coverage.
(Filed for 2010 session 1/13/10; SB  283, SB 311 and SB 417  passed Senate 23y-17n, 2/1/10; passed House 67y-29n, 2/12/10; sent to governor; amended and repassed  Senate 3/4/10; repassed House ; became law as  Virginia Chapter 106 of 2010, 3/10/10.
* Under Virginia law, the Governor exercised his option to return the bill to the legislature with a formal recommended amendment.  Both branches of the legislature voted to accept the Governor's recommendation, at which point the bills became law without requiring the Governor's signature.
[news articles: VA
2/10/2010; Boston Globe 3/8/2010

Statute: 
majority both legislative chambers

  Washington

HB 2669 by Rep. Hinkle; SB 6535 by Sen. Holmquist
Would amend state law by adding a provision that the state "shall not directly or indirectly compel any person, employer, or health care provider to participate in any health care system." and that " A person or employer may pay directly for lawful health care services and shall not be required to pay any penalty, fine, or other sanction for paying directly for lawful health care services.
(Filed  & sent to Health & Wellness Comm. 1/12/2010; did not pass by end of regular session; reintroduced in 1st Special Session 3/15/10); final day 4/13/10)

Proposed statute: 
majority both legislative chambers

SJR 8220 by Sen. Stevens
A proposed 2010 Constitutional amendment to provide that no law or rule may compel any person, employer, or health care provider to participate in any health care system; defines health care system as any public or private entity whose function or purpose is the management of, processing of, enrollment of individuals for, or payment for, health care services or health care data or information for its participants.
(Filed  & sent to Health & Wellness Comm. 1/12/2010; did not pass by end of regular session; reintroduced in 1st Special Session 3/15/10)

2/3rds  both legislative chambers
+
2010 ballot vote

  West Virginia
  (2009)

 

 
 

  West Virginia
  (2010)

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)

Proposed statute: 
majority both legislative chambers
(Did not pass)

HJR 103 by Rep. J. Miller
A proposed 2010 Constitutional amendment prohibiting compulsory purchases in healthcare and providing choice and in payment for health services.
(Filed 2/5/10; motion to discharge postponed 2/25/10; did not pass committee by deadline -end of session. 3/19/10)

2/3rds Vote in both legislative chambers
+
2010 ballot vote

  Wisconsin

SJR 62 by Sen. Leibham;  AJR 138
A proposed 2012 Constitutional amendment; would establish the "right of the people to contract privately for health care services and health care coverage, and prohibiting requiring a person to obtain or maintain" health coverage.

(Filed 2/22/10; did not pass committee by 2010 session deadline 4/28/10)

50% both legislative chambers
+
2012 ballot vote

  Wyoming
  (2009)

 

 

  Wyoming
  (2010)

 

 

 

   "

SJR 3, by Sen. Pres. 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 care; prohibits laws interfering with freedom of choice in health care" 
(Filed 1/20/09; died in Senate committee 3/3/09; no carryover)

2/3 both legislative chambers
+
2010 ballot vote

SJ 1 by Sen. Pres. Hines; HJ 12 by Rep. Lubnau
Resolution for a proposed 2010 constitutional amendment for “Health freedom of choice,” stating, “the federal government shall not interfere with an individual’s health care decisions.” Also would call for “prohibiting any penalty, fine or tax imposed because of a decision to participate in or decline health insurance, or to pay directly or receive payment directly for health care services.”
(Filed 1/26/10; did not pass introduction 18y-12n, 2/9/10; HJ 12  did not pass introduction 38y-19n, 2/10/2010)  [news article]

SB 49 by Sen. Jennings
Resolution would direct the attorney general to investigate the state and federal constitutional effects of federal health care or health insurance reform legislation; requiring a report within 60 days of any future federal enactment; providing for the attorney general to seek legal remedies.
(Filed 2/3/10; did not pass introduction requirement, 18y-12n, 2/9/10) 

2/3 both legislative chambers
+
2010 ballot vote


 
Proposed statute; 2/3 required for consideration in budget session

Table 2: States Opposing Health Reform Financing and Unfunded Mandates

State

Activity/Legislation

Required for Passage 

Arizona

HCM 2002 ; SCM 1001
Relates to Medicaid; urges Congress to ensure that any federal health care reform legislation has a minimal fiscal impact on the states.
(Filed 1/15/10; favorable report 3/17/10; did not pass by end of session)

Non-binding
 resolutions

Florida

S4b  Non-binding Senate resolution urges the U.S. Congress to amend Medicaid law in order to "reestablish a fair and prudent federal-state partnership" that allows each state "the freedom to craft a Medicaid program that meets the needs of its residents" without mandatory expansion and enables states to provide cost-effective health care services to low-income residents
(Passed Senate; passed House 11/16/10 Adopted)

 
Illinois

HR 1074 by Rep. Bellock
Would request that the IL Commission on Government Forecasting and Accountability examine the provisions of the federal health care reform law to determine the fiscal impact of the provisions on the state budget, with a report due July 1, 2010 for use wit the FY1011 budget.
(Filed and sent to Rules Committee, 3/26/10; held in comm. as of 9/7/10)

Non-binding
 resolutions

Iowa

SB 2097
Would affirm the intent of the General Assembly to exercise those powers reserved to the states; includes but not limited to providing state-based regulation of the health insurance market; provides aggressive oversight of this market; enforces consumer protection and a local, responsive presence for consumers.
(Filed; sent to Senate Committee on Judiciary 1/27/10; did not pass by end of session 4/10)

 
Michigan

SR 106 by Sen. George
Memorializes the President, the Congress, and the Secretary of HHS to remove provisions from the final version of the federal health care reform legislation that would increase financial obligations for states, whether through expanded Medicaid requirements or other mandates.
(Filed; Adopted by Senate 1/16/10)

Non-binding
 resolutions

New Hampshire

SB 417 by Sen. Bradley
Would amend state law to prohibit the expansion of the Medicaid program if Congress passes a national health insurance plan unless the expansion is approved by the NH Legislature or is paid for by the federal government.
(Filed and sent to Senate Finance Committee 1/6/10; did not pass; voted as "inexpedient to legislate" , 14y-10n, 3/3/10)

Proposed statute: 
majority both legislative chambers

Sources: NCSL research; State legislative web sites; StateNet for selected features.  Powered in part by
 

 

News and Articles, 2009-2010

2011 News and Articles  

 APPENDIX 1 -

News and Archive: Supreme Court and Federal Court Actions with Legal Details, 2010 - 2016

The U.S. Supreme Court issued its final ruling on Department of Health and Human Services (HHS) v. Florida on June 28, 2012. Read NCSL's analysis and related reports. The U.S. Supreme Court, in separate challenges, ruled June 2014 and June 2015 that closely held companies and certain religious-related employers cannot be compelled to offer their employees birth control as part of the law if they object to the provisions on religious grounds. On July 3, another Supreme Court decision ruled on non-profit employers role in contraceptive coverage. On March 30, 2015 the court upheld the Medicare Payment Council within the ACA. On April 10, 2015 a circuit court ruled against state restriction of Navigators.Additional and earlier, 2010-2012, court actions and analyses are available online.

Recent Actions on Legal Challenges, post-Supreme Court (2015-2016)

The following are analyses and comments about eight federal lawsuits, several resolved and at least four others still under consideration:

 1. Supreme Court Upholds Premium Subsidy Provisions - June 25, 2015

Four lawsuits challenging the IRS’s authority to offer subsidies through federal Exchanges are pending, with substantive steps and rulings in 2013 and 2014. At stake are the monthly health premium subsidies that are available to income-eligible people purchasing insurance in up to 34 states with a federally-facilitated health marketplace. In 2014 this provision paid subsidies for about 4.5 million people enrolled in exchanges; by February 2015 the estimates of people receiving subsidies is at 8 million. Subsidies have been available on a sliding scale to people with annual incomes up to $45,960 for individuals and up to $94,200 for a family of four. (This is 400% of federal poverty guidelines, set in the statute.) The challenges were initiated and filed by Oklahoma and Indiana Attorneys General plus private parties. In Halbig v. Burwell (formerly Halbig v. Sebelius), the plaintiffs (four individuals and three small businesses) began with a filed motion for summary judgment  in June 2013, asking the U.S. district court for the District of Columbia to rule on their complaint regarding the IRS’s claimed "illegal subsidies."  

The U.S. Supreme Court.  On March 4,2015 oral arguments on the case known as King v Burwell before the U.S. Supreme Court may give an indication how the court stands on a case that will decide whether low- and middle-income people enrolled in federally facilitated health exchanges qualify for federal subsidies under the Affordable Care Act. 

  • NCSL Blog: Supreme Court Upholds ACA: Subsidies Will Not Subside | June 25, 2015 by Lisa Soronen
  •  Eyes, Ears on Justices Kennedy, Roberts During ACA Argument.  "For Justice Kennedy it was his questions, for Chief Justice Roberts it was his silence. … Both sides tried to claim that in this case federalism was on their side." NCSL Blog by Lisa Soronen, executive director of the State and Local Legal Center.
  • The oral argument transcript before the Supreme Court, March 4, 2015. (97 pp, PDF)
  • State attorneys general in seven states—Alabama, Georgia, Indiana, Nebraska, Oklahoma, South Carolina and West Virginia—have filed or signed amicus briefs supporting the position that federally-based marketplace subsidies are not legal. The court cases initiated by Indiana and Oklahoma are linked and elaborated below.

Recent analyses and reports from diverse sources | Provided for general background only; NCSL is not responsible for material on third-party websites

  • Flood of Briefs on the Health Care Law’s Subsidies Hits the Supreme Court. - NY Times, 2/22/2015.
    "Liberal groups are emphasizing states’ rights, a theme calculated to appeal to conservative Supreme Court justices. The insurance industry, once a foe, has come to the aid of President Obama. Conservatives are mining legislative history to discern the intent of Democrats who wrote the Affordable Care Act. And those Democrats are firing back, saying they know exactly what their intent was: to provide affordable health insurance to all Americans.
  • Heartland Institute: How Would States Respond to Unsubsidized Obamacare? 2/18/2015
  • The Hill: "Court challenge stirs ObamaCare angst" citing RAND, RWJ Foundation - 11/8/2014
  • "Q and A: For Supreme Court, a Case of Economics and Politics" 11/8/2014
    The Commonwealth Fund: "The Supreme Court Decides to Hear King v. Burwell: What Are the Implications?" - 11/7/2014
  • July-November 2014 Previous Actions: U.S. Court of Appeals for the D.C. Circuit issued an opinion on the renamed Halbig v. Burwell, ruling against the provision that has allowed premium subsidies in federally-run marketplaces.  The four judge panel ruling was vacated (essentially canceled) in September when the D.C. Circuit Court decided to hear the case "en banc," by the full bench. Oral arguments in that case had been scheduled for Dec. 17.  Notes: Link updated 12/22/2014; see NCSL cited on page six of the opinion.
  • Two hours after the D.C. court opinion, the Fourth Circuit court in Virginia, in a similar case, King v. Burwell, ruled 3-0 in favor of continuing subsidies in federal and state exchanges. As reported July 22, the Richmond court "saw ambiguity in the text, but said the IRS had the power to interpret the statute broadly" as it set the rules.
    • Plaintiffs: On July 31, 2014, the plaintiffs petitioned the Supreme Court to rule on premium subsidies [news description, 8/1/2014]
      "The IRS has arrogated for itself the power to rewrite a federal statute, triggering federal appropriations and financial penalties beyond those authorized by the legislature,” wrote Jonathan H. Adler and Michael F. Cannon in an amicus brief to the D.C. appeals court in support of the plaintiffs. “Such 'administrative hubris' cannot stand." Adler and Cannon, from Case Western Reserve University and the Cato Institute, crafted the legal theory behind the case. 
    • Defendants: The lawsuit's critics, though, say plaintiffs are missing the forest for the trees. "Courts do not read statutes by cherry-picking single phrases to defeat the entire purpose of laws," wrote Washington and Lee University Law School Professor Timothy Jost in the Washington Post.  Read his updated analysis of July 23.
    • NCSL Today news of July 23, 2014 featured the following article: New questions on health law as rulings on subsidies differ. The New York Times
      Two federal appeals court panels issued conflicting rulings Tuesday on whether the government could subsidize health insurance premiums for millions of Americans, raising yet more questions about the future of the health care law four years after it was signed by President Obama.
    • Read an NCSL overview of the 2013 activity, Health Reform Back in the Courts, posted by Rachel Morgan, committee director with NCSL's federal affairs staff, 10/22/2013.
  • Oklahoma: The earliest lawsuit, filed Sept. 19, 2012 in the U.S. District Court for the Eastern District of Oklahoma in Muskogee, Pruitt v Burwell) argues that the IRS' regulation directly contradicts the Affordable Care Act's original language regarding the (federally administered) exchanges.
    • Sept 30, 2014 Update: In a legal setback for the ACA provision, the federal judge in Oklahoma ruled that people in states that rely on the federal insurance exchange are not eligible for Obamacare premium subsidies to help them pay for coverage. U.S. District Judge Ronald White, a George W. Bush appointee, invalidated an Internal Revenue Service rule interpreting the ACA Patient Protection and Affordable Care Act to allow the premium tax credits in states that have not established their own exchange. “The court holds that the IRS rule is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law,” White wrote.
      [Modern HealthCare article 9/30/14]
    • The plaintiffs' case argues more specifically—the premium subsidies, which carry significant financial penalties for certain employers that do not provide adequate and affordable employee health benefits as defined by the law. According to one analysis," the amended lawsuit appears to yield the federal government's authority to apply the provision, as long as it doesn't run afoul of a November 2010 amendment to the state's constitution designed to prohibit any law that "compels, directly or indirectly, any person, employer or health care provider to participate in any health care system." (Read Workforce Management article "Oklahoma Attorney General...", 9/21/2012.  In Pruitt v. Sebelius, the U.S. district court for the Eastern District of Oklahoma held a  June 20, 2013 hearing on the government’s motion to dismiss Oklahoma’s similar lawsuit. In August, U.S. District Judge Ronald White allowed Oklahoma to proceed with a similar case against the subsidies.
  • Indiana: State of Indiana v. I.R.S. filed by Attorney General Greg Zoeller and several public schools districts.  Plaintiffs and defendants filed summary judgment motions before the U.S. District Court, Southern District of Indiana. In August 2014, a federal judge declined to dismiss the case brought by Republican Gov. Mike Pence.
  • The Cato Institute's Michael Cannon’s has led research on the IRS’s "ObamaCare tax-credit rule", in a 79 page study, published in mid-2012.
2. Religious Employers Challenge Overturns Health Care Law's Contraception Rule

During 2012-2014, about 100 lawsuits (49 filed by for-profit businesses; 51 by non-profits) were filed and pursued in federal courts challenging the contraceptive coverage requirement contained in a federal regulation implementing the Affordable Care Act.

  • Nov. 6, 2015 Update: The U.S. Supreme Court announced it will take up a challenge to the ACA's birth control mandate. As reported in The Hill, it is "a sequel to last year’s landmark Hobby Lobby case. The justices will take up seven cases involving the mandate, including one from a group of Catholic nuns known as Little Sisters of the Poor. The court was widely expected to take up one or more of the cases because of a lower-court split. Their ruling could deliver a second major blow to the health law’s contentious provision in two years. It will be the fourth time that ObamaCare is before the Supreme Court.The birth control coverage requirement has drawn intense legal scrutiny, from both religious charities and colleges such as Notre Dame and Wheaton, since the early days of ObamaCare.The Obama administration tweaked its mandate this summer after the Hobby Lobby case, expanding the definition of which businesses can seek exemptions from the controversial ObamaCare mandate.
           But the administration’s attempt to appease religious groups fell flat, and multiple groups, including Little Sisters of the Poor, filed suit arguing that the new rules were still a burden on their rights guaranteed under the Religious Freedom Restoration Act (RFRA) and the First Amendment. The cases, which come out of the Third, Fifth, 10th and D.C. Circuit appellate courts, include a case known as Roman Catholic Archbishop of Washington v. Burwell, which the Department of Justice urged the court to take in a September brief."

Nonprofits object to accommodation process. The nonprofit organizations in this challenge seek a ruling that would allow them to be exempt from the requirement to provide objectionable contraceptive coverage without having to undertake the accommodation process, which requires the filing of additional paperwork stating the organizations’ objection to the provision of contraceptives. The accommodation itself, the organizations argue, is a substantial burden on their religious exercise. The following seven cases, originating in the 3rd, 5th, 10th and District of Columbia circuits, will be consolidated for hearing before the court:>

  • Zubik v. Burwell
  • Priests for Life v. HHS,
  • Roman Catholic Archbishop of Washington v. Burwell
  • East Texas Baptist University v. Burwell
  • The Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Burwell
  • Southern Nazarene University v. Burwell
  • Geneva College v. Burwell

While several of these cases were consolidated at the appellate court level, all seven filed separate petitions for writ of certiorari. The Court will rule on whether the mandate and the accommodation violate RFRA but refused specifically to hear claims under RFRA and the First Amendment that the government discriminated among those allowed an exemption and those not. SOURCE via Wolters Kluwer LLC, Nos.14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119, and 15-191, cert. granted, Nov. 6, 2015.

  • June 29, 2015, Update: The Supreme Court issued an order that allows certain nonprofit religious groups to avoid compliance with federal rules concerning insurance coverage of contraceptives for women. The order bars the Obama administration from enforcing the rules against the religious groups and church officials until the court decides whether to hear an appeal they filed this year. In their lawsuit, Zubik v. Burwell, Pittsburg-based Catholic officials challenged procedures established by the Obama administration to address religious objections to a federal requirement for coverage of birth control.
  • June 30, 2014, Update: The U.S. Supreme Court on June 30, 2014, ruled that closely held, usually family owned, companies cannot be compelled to offer their employees birth control as part of the Affordable Care Act if they object to the provisions on religious grounds. [Read Supreme Court Ruling.]  The consolidated case, previously known as Sebelius v. Hobby Lobby, now known as Burwell v. Hobby Lobby Stores, alters the ACA’s requirement that companies offer contraceptive services to workers as part of their insurance coverage, potentially affecting millions of women . It retains intact the requirement for publicly traded companies. In a concurring opinion, Justice Anthony Kennedy argues that the government could decide to fill the void by covering the costs of the coverage itself.  It  is the Supreme Court’s first judgment on the ACA statute since it upheld the individual mandate requiring health insurance, on June 28, 2012. 
    "A Two-Page Form Spawns a Contraceptive Showdown" - analysis of federal Form EBSA-700 - by N.Y. Times, 7/13/2014 -  http://www.nytimes.com/2014/07/13/us/a-two-page-form-spawns-a-contraceptive-showdown.html
  • The Nonprofit Employers Case: On July 3, 2014, the Supreme Court decided its second contraceptive case of the 2013-2014 term, Wheaton College v. Burwell. [Docket #13A1284; Read a more complete legal analysis by Prof. Tim Jost in Health Affairs, 7/5/2014] He states, " In their July 3 ruling, the six male members of the Court issued a temporary injunction prohibiting the government from requiring Wheaton College to file form EBSA 700 with its insurer or TPA. The Court noted that its order did not prohibit Wheaton’s insurer or TPA from providing contraceptives to Wheaton’s employees or students. The government already knew of Wheaton’s objection, the Court observed, and could require its insurer or TPA to cover these services. The decision and its reasoning, such as it is, come to about a page.  It is followed by a fifteen page indignant dissent by Justice Sotomayor, joined by the other two women on the Court, Justices Kagan and Ginsburg." 
    • On Jan. 24, 2014: U.S. Supreme Court temporarily exempted a religious order from providing contraception coverage.  The court issued an injunction stopping the administration from imposing the mandate for contraception coverage on a chain of nursing homes operated by the Little Sisters of the Poor, an order of Roman Catholic nuns.  The action continues the injunction issued by Justice Sonia Sotomayor on Dec. 31, 2013, described below. News coverage:   Court Rules on Contraception - N.Y. Times | Supreme Court temporarily exempts religious order - Modern Healthcare - 1/24/2014.
    • Earlier Actions: On Dec. 31, 2013, the day before the requirement was to take effect, Supreme Court Justice Sonia Sotomayor temporarily blocked the implementation of the regulatory provision for health care law that would have required some religious-affiliated organizations to provide health insurance for employees that includes coverage for birth control. The federal government is ‘‘temporarily enjoined from enforcing against applicants the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act,’’ Sotomayor said in the order. The injunction was a response to a request from the Little Sisters of the Poor Home for the Aged, an organization of Catholic nuns in Denver. The U.S. Justice Department filed a response on Jan. 3, stating in part, “If an eligible organization chooses not to provide contraceptive coverage, the regulations create another mechanism for providing such coverage.” The Solicitor General's 37-page motion seeking denial of the injunction argued that "With the stroke of their own pen, applicants can secure for themselves the relief they seek from this Court — an exemption from the requirements of the contraceptive-coverage provision,"   [Related articles: Health Affairs by Tim Jost | Boston Globe, 1/1/2014.]
    • In 2012 and 2013 the Obama administration adopted a compromise, or accommodation, that attempted to create a buffer for religiously affiliated hospitals, universities, and social service groups that oppose birth control. The HHS Department regulations require insurers or the health plan’s outside administrator to pay for birth control coverage and creates a way to reimburse them.
3. House of Representatives v. Burwell - May 2016

In a ruling in September 2015, on the case United States House of Representatives v. Burwell, U.S. Federal District Court Judge Rosemary M. Collyer stated lawmakers have standing to raise the claim that the Obama administration improperly directed money appropriated for the ACA’s health plan premium subsidies to pay insurers for the cost-sharing assistance they provide to lower-income marketplace enrollees.

  • 2017: Court Denies Cost-Sharing Reduction Payment Recipients Right To Join Litigation
    On January 12, 2017, the D.C. Circuit denied two recipients of cost-sharing reduction payments the right to intervene in House v. Burwell, a challenge to reimbursement of insurers for those payments. The litigation is now in the hands of the Trump administration and the House. Health Affairs Blog by Tim Jost, 1/13/2017
  • Court Stays Cost-Sharing Reduction Payment Case, Giving Control To New Administration And Congress
    On December 5, 2016, the Circuit Court of Appeals for the District of Columbia acceded to the request of the House of Representatives and has stayed proceedings until at least Feb. 21, 2017 in a case brought by the House of Reps. challenging government payments to insurers to reimburse them for reducing cost sharing for lower-income marketplace enrollees. The suit is now the new administration and Congress’s responsibility.
  • On May 12, 2016, the federal district court for the District of Columbia Judge Rosemary Collyer decided [Link to Court] that the Obama administration cannot constitutionally reimburse insurers for the costs they incur in fulfilling their obligation under the ACA to reduce cost sharing for marketplace enrollees with incomes below 250 percent of the poverty level. Judge Collyer found that Congress has not specifically appropriated money for this purpose. The judge stayed her order enjoining the administration from reimbursing insurers absent a specific appropriation pending appeal. The case will certainly be appealed and it will be a long time before we know how the matter ends up. But the May 12 decision was a clear victory for the House.  NEW Read Health Affairs's analysis by Prof Tim Jost, 5/12/2016
  • In a blog post, George Washington University’s Sara Rosenbaum reviews how a loss of funding for this assistance might affect enrollees’ out-of-pocket expenses.
3A. U.S. Supreme Court Justices on  tax-raising bills to originate in the House of Representatives - 2016

On Jan. 18, 2016, left in place lower court rulings that dismissed a lawsuit against the ACA which argued that the law violates the provision of the Constitution that requires tax-raising bills to originate in the House of Representatives. The Pacific Legal Foundation backed the latest lawsuit, filed on behalf of small-business owner Matt Sissel. The high court left in place a 2014 ruling by the U.S. Court of Appeals for the District of Columbia Circuit upholding a lower court's dismissal of the lawsuit, which was backed by the Pacific Legal Foundation, a conservative legal group. The suit targeted the law's "individual mandate" that Americans obtain health insurance or pay a tax penalty. [Reuters article 1/20/2016]

4. In 2016, Six States Sue Obama Administration Over Affordable Care Act

Six states filed a new lawsuit February 24, 2016 against the Obama administration over the Affordable Care Act. The complaint that Texas, Wisconsin, Kansas, Louisiana, Indiana and Nebraska filed in the Northern District of Texas takes issue with the Health Insurance Providers Fee assessed to health insurers to cover federal subsidies. The lawsuit says nothing in the Affordable Care Act's language provided clear notice that states would also have to pay the fee. (AP article, 2/24/2016)

5. U.S. Supreme Court Rejects Obamacare 'Death Panels' Challenge.
  • The U.S. Supreme Court on March 30, 2015 declined to hear a new challenge to President Barack Obama's healthcare law that took aim at a bureaucratic board labeled by some Republicans as a "death panel" because it was designed to cut Medicare costs. The high court left intact a ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals that threw out the lawsuit. (Reuters article, 3/30/2015)
  • Justices denied the Goldwater Institute’s petition for review of an appeals court dismissal of a challenge to the constitutionality of the Independent Payment Advisory Board, or IPAB. (CQ Healthbeat, 3/30/2015)
6. State Laws Restricting Navigators: Federal Judge Halts Missouri Law, Tennessee Regulation - with March 2016 Update

During 2012 and 2013 a growing number of states enacted laws regulating and/or restricting the roles of "navigators" and others counseling applicants seeking to enroll in a new ACA-related health insurance plan.  By December 2013, 15 to 17 states had extra requirements or restrictions; overall, at least 24 states had extra consumer or business protection provisions, some of which are compatible with the ACA regulations. Most recent actions are listed first.

  • Missouri: On March 16, 2016 the U.S. District Court struck down Missouri state laws that severely restricted the advice health care navigators and certified application counselors could give to insurance customers. Senior Judge Ortie D. Smith ruled that provisions in the Affordable Care Act (ACA) preempt Missouri's restrictive legislation, which means consumers will have full access to the assistance they need to choose the best coverage that suits their needs. According to NHeLP, "co-counsel Jay Angoff of Mehri & Skalet, represented Planned Parenthood of the St. Louis Region and Southwest Missouri and the St. Louis Effort for AIDS in the case. They project that the decision will "undoubtedly have effects in other states that have passed similarly restrictive laws." [Missouri news article, 3/17/2016]
  • In 2015, in the first case to reach a higher court, Missouri v. St. Louis Effort for AIDS, the 8th Circuit Court ruled Apr. 10, 2015 that states cannot limit the ability of Navigators and other consumer assisters to help people enroll in insurance as the Affordable Care Act (ACA) intends. Jay Angoff, who represented the plaintiffs in the case along with the National Health Law Program (NHeLP), said "Missouri had placed groups like St. Louis Effort for AIDS in an untenable situation: If they complied with the Missouri statutes, they couldn't perform the duties the Affordable Care Act requires them to perform, but if they complied with the ACA and do perform those duties, they violated the Missouri law and are subject to thousands of dollars in penalties for doing so." Angoff is a former Missouri Insurance Commissioner and head of ACA implementation at the U.S. Department of Health and Human Services.  > [Text and explanation of Ruling]
  • On Jan. 23, 2014, Northern Missouri federal district Judge Ortrie Smith declared that Missouri was illegally obstructing federally designated "navigators," and the state law (SB 262, enacted and signed July 2013) was preempted by the federal ACA. The injunction applies only in Missouri; it is one of the first cases in which an operational state law, passed after the ACA became law, was halted because it contradicted the federal law.
  • Tennessee also faced litigation brought both in federal and state court in Tennessee challenging that state’s restrictive navigator emergency regulations. Tennessee settled the state court case, allowing navigators and CACs to carry out their duties under federal law.  In the federal case (Harrington v. Haslam), on Oct. 7, 2013 U.S. District Court Judge Todd Campbell placed a temporary injunction on the state navigator regulations.
7. Origination Clause Challenge to ACA Individual Mandate Rejected by Full DC Appeals Court

On Aug. 7, 2015,. the U.S. Court of Appeals for the D.C. Circuit refused to rehear a three-judge panel’s decision rejecting the claim that the Affordable Care Act’s individual responsibility requirement was adopted in violation of the Constitution’s Origination Clause. [Full article online] Health Affairs Blog by Timothy Jost, 8/7/2015.

8. Challenges on Mandates and Anti-Injunction Act: Liberty University's Case Remanded and Added by Federal Court (As reported by Tim Jost, J.D., in Health Affairs Blog.)

"On July 11, 2013, the Fourth Circuit Federal Court of Appeals unanimously affirmed the 2010 decision of district court judge Norman Moon dismissing a case brought by Liberty University and several individual plaintiffs challenging the Affordable Care Act.   The Fourth Circuit had rejected Liberty’s appeal in a 2011 decision, holding that Liberty’s case challenging the individual mandate was barred by the tax Anti-Injunction Act (AIA), which prohibits lawsuits enjoining the collection of a tax.

  • That Fourth Circuit decision had been vacated, reversed, and remanded by the Supreme Court, however, after it rejected the AIA argument in the National Federation of Independent Business case.  The Supreme Court’s NFIB decision upheld the individual mandate but remanded Liberty University’s case to the Fourth Circuit to decide the remaining issues in the case:  whether the employer mandate is constitutional and whether the ACA violated Liberty University’s religious liberty rights or the First Amendment’s Establishment Clause.  On remand, Liberty University attempted to add several other issues to the case, including an Origination Clause claim and a challenge to HHS regulations requiring coverage of contraceptives.  This history has been described in earlier posts."
  • Anti-Injunction Act.  The court began by rejecting the government’s defense that Liberty University’s employer mandate claim was barred by the AIA. Although the court recognized that the employer mandate provision labels the exaction that enforces it a tax at a couple of places, it held that the mandate penalty was nonetheless not a tax for purposes of the AIA. [see full article]
9. July 2016: Appeals Court Strikes Down Restrictions on “Fixed Indemnity” Insurance | NEW

A federal appeals court, on July 1, 2016, ruled that consumers must be allowed to buy certain types of health insurance that do not meet the stringent standards of the Affordable Care Act, deciding that the administration had gone beyond the terms of federal law.  At issue is a type of insurance that pays consumers a fixed dollar amount, such as $500 a day for hospital care or $50 for a doctor’s visit, regardless of how much is actually owed to the provider. The court struck down the rule that barred the sale of such insurance as a separate stand-alone product. According to the New York Times, "State officials and insurers estimate that as many as four million people might have fixed indemnity policies without major medical coverage."

In its ruling the court said the administration “effectively eliminated stand-alone fixed indemnity plans altogether,” by tacking “additional criteria” onto the 1996 law.  The case, Central United Life Insurance v. Burwell, was issued by a 3-judge panel composed of Judges Janice Rogers Brown, Patricia A. Millett and Douglas H. Ginsburg. 

The appeals court upheld an earlier decision by Judge Royce C. Lamberth of Federal District Court, who said the Obama administration’s rule “has no basis in the statutory text it purports to interpret and plainly exceeds the scope of the statute.”

Archive Report: State Attorneys General and/or Governors Seeking to Block Healthcare Law in Court, 2010-2012

These actions by executive branch officials and private parties are provided for general information. They are legally separate from state lawmaking but may affect state deliberations.  NCSL takes no position on the merits or opinions expressed in the cases cited.

In early April, 2010, 13 state attorneys general filed a lawsuit seeking to repeal health care reform in federal court in Florida; by June 2010 a total of at least 20 states had some role in support of this legal challenge. Virginia Attorney General Ken Cuccinelli pursued a similar suit in his home state. The cases center on the health care reform’s mandate that most Americans, starting in 2014, purchase insurance.

Key ACA Provisions Challenged

Collectively the initial litigation raised constitutional challenges to four provisions of the ACA.

  • Individual responsibility – The law’s requirement that beginning January 1, 2014, nonexempt individuals either maintain health insurance coverage (termed “minimum essential coverage”)[10] or pay a penalty in the form of a tax. The fine would be up to $750, or 2 percent of their income, whichever is greater. [11]
  • Medicaid expansion – The law’s requirement that states participating in Medicaid expand  their programs, beginning January 1, 2014 to cover non-elderly persons with incomes below 133 percent of the federal poverty level (FPL), including individuals previously ineligible for federally assisted Medicaid benefits.[12]
  • Insurance market reforms – Federal reforms aimed at curbing certain practices by health insurers, specifically: reforms that require insurers and self-insured group plans to issue and renew health insurance coverage without regard to the health status of individuals or groups, and to offer coverage that is not subject to annual or lifetime limits and that complies with certain other requirements.[13]
  • Employer responsibility – The law’s minimum employer contribution responsibilities in the case of employers that either offer no plan or a plan with inadequate subsidies, with contribution responsibilities tied to the number of employees that qualify for a subsidy.[14]

2014 Update:  Eleven attorneys general slam Obama healthcare fixes as illegal - The Hill, 1/2/2014

List of States' Attorneys General  or Governors* Acting to Pursue Lawsuits Opposing Health Provisions.

The tally totals 28 states, including 26 acting jointly. In addition, Missouri began as a single state; others joined for the Appeals Court stage.  Virginia filed and acted alone.
-List as of June 2012.

Note: Statements and actions by state executive officials are listed for background information only.  This report does not evaluate the role or positions of such officials.

States' Attorneys General (or Governors*) Acting to Pursue Lawsuits Opposing Health Provisions.

*  = States where legal action was initiated by governors' offices.
** =  Newly elected executive branch officials for 2011 announced support for lawsuit.
§  = States where Attorney General initiated action but Governor publicly supports law, opposes challenge.
§§ = The Republican AG of Penn. was elected Governor on 11/2/2010.
§§§ = Missouri Lieutenant Governor Peter Kinder and six state residents sued U.S. officials July 2010. 21 states joined the suit in July 2011.

State Legal Actions in Support of the ACA -2012 Update

Lawmakers who backed the ACA also were being heard from. The Working Group of State Legislators for Health Reform announced in January 2012 they filed a "friend of the court" brief, on behalf of 518 members from 50 states, with the Supreme Court defending the constitutionality of the new health care law. That group was working with the support of the Progressive States Network and the Constitutional Accountability Center.

APPENDIX 3:   ARCHIVE OF COURT ACTIONS, 2010-2011 

2011 APPEALS COURT STEPS

District of Columbia U.S. Court of Appeals (No. 11-5047): On November 8, 2011, at the U.S. Court of Appeals for District of Columbia, a three-judge panel issued a ruling in the case (Susan Seven-Sky v. Eric Holder, Jr)  upholding the constitutionality of the federal ACA law.  In a 2-1 decision, Judge Laurence Silberman affirmed the lower court's ruling, finding that the ACA's individual mandate -- requiring that nearly all persons have health insurance -- is within Congress' powers. Judge Brett Kavanaugh's dissent disagreed with the conclusion, without taking a position on the merits of the law, stating that the case lacks standing until the law takes effect in 2014.  This was an independent lawsuit filed by the American Center for Law and Justice and dismissed by U.S. District Judge Gladys Kessle, of the District of Columbia, on February 22, 2011.  The appeal was supported by attorneys general offices in 14 states: Alabama, Florida, Indiana, Kansas, Maine, Michigan, Nebraska, North Dakota, Ohio, Pennsylvania, South Dakota, Texas, Washington and Wisconsin.

Florida v. U.S. Dep't of Health & Human Services. [court papers]  On September 28, 2011 both the plaintiffs and the Justice Department, in the Florida-based multi-state challenge to the Affordable Care Act (ACA), formally petitioned the Supreme Court to take up the case during its upcoming term (October 2011-June 2012). 
“We believe the question is appropriate for review by the Supreme Court," the Justice Department stated on Wednesday.  “Time is of the essence,” wrote Paul D. Clement, the former United States solicitor general who represents 26 states that are challenging the law.  On September 26, the Justice Department said that it had decided not to ask the full U.S. Court of Appeals for the 11th Circuit in Atlanta to conduct another review at the circuit court level, which could have slowed the court process.   
> On August 12, the Court of Appeals for the 11th Circuit in Atlanta, in State of Florida v. U.S. Dep't of Health & Human Services, ruled against the individual mandate provision in the ACA,  by 2-to-1. This case was initiated by Florida A.G. Bill McCollum and eventually joined by 26 states; their case argued that the reform law should be struck down because it relies on an unconstitutional expansion of federal power. 
> Court Filings requesting U.S. Supreme Court review: United States Justice Department petition for a writ of certiorariFlorida et al petition for a writ of certiorari | NFIB petition for a writ of certiorari 9/28/2011. [see definition]
 

Virginia: On September 8, 2011, the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia sided with the federal health reform law on procedural grounds, dismissing or “vacating” two separate earlier District Court cases.  

  • In Commonwealth of Virginia v. Kathleen Sebelius (#11-1057), the Appeals Court judges’ opinion (33 pages) ruled that Virginia did not have standing to challenge the Affordable Care Act based on their state statute (Virginia Chapter 106 of 2010) declaring opposition to an "individual mandate."  The federal law will require most Americans to obtain or purchase health insurance by 2014 or face a financial penalty. The unanimous opinion, written by Judge Diana Gribbon Motz, concluded that a state does not “acquire some special stake in the relationship between its citizens and the federal government merely by memorializing its litigation position in a statute.” (p. 28) She continued, “If we were to adopt Virginia’s standing theory, each state could become a roving constitutional watchdog of sorts.”

    In both cases, the decision was to “vacate the judgment of the district court and remand to that court, with instructions to dismiss the case for lack of subject-matter jurisdiction.”   Virginia goes back to the U.S. District Court for the Eastern District of Virginia; (Civil Action No. 3:10-cv-188,) where Judge Henry Hudson had issued a ruling on December 13, 2010, declaring the federal individual mandate unconstitutional. Virginia Attorney General Kenneth Cuccinelli announced on September 8 that he would appeal to the U.S. Supreme Court.

  • In Liberty University v. Timothy Geithner (#10-2347), the Appeals Court judges’ opinion (140 pages) ruled 2-1 that the plaintiffs also lacked standing to challenge the federal law, for a different legal reason. Judge Motz wrote that the Liberty suit could not seek to strike down the individual mandate before it took effect in 2014 because doing so would, in effect, usurp the government’s right to collect a tax.

Earlier, another federal appeals court disagreed when reviewing similar but separate legal challenges, upholding the Affordable Care Act.

  • Ohio:  On June 29, a three-judge panel of the Court of Appeals for the Sixth Circuit in Cincinnati, in Thomas More Law Center v. Barack Obama (#10-2388), ruled 2-to-1 in favor of the federal law’s requirement that most Americans must obtain health insurance, starting in 2014. Judge Jeffrey Sutton delivered the opinion for the court; the decision in part split three ways, with no majority to completely uphold the mandate under the Commerce Clause. 

Litigation Highlights, 2010-2011 Background

For two years there were two distinct state-based  federal court challenges, a third case supported by Missouri executiives, and several other private party suits with judges' rulings.  Some cases have been combined by federal appeals courts:

  1. State of Florida v. U.S. Dep't of Health & Human Services. (led by Florida A.G.; in Florida Northern District Court; Case No.3:2010-cv-0009 ) Filed March 23, 2010.  On January 31, 2011 Federal District Judge Roger Vinson declared the federal health care overhaul unconstitutional, siding with 26 states that sued to block it, saying that people can't be required to buy health insurance by 2014 or face penalties. He went a step further than a previous ruling against the law, declaring the entire thing unconstitutional if the insurance requirement does not hold up. 

    Attorneys for the administration had argued that the states did not have standing to challenge the law and that the case should be dismissed. The final step will almost certainly be the U.S. Supreme Court. Two other federal judges have already upheld the law and a federal judge in Virginia ruled the insurance mandate unconstitutional but stopped short of voiding the entire law. At issue was whether the government is reaching beyond its constitutional power to regulate interstate commerce by requiring citizens to purchase health insurance or face tax penalties. 
    >  "Fla. judge strikes down Obama health care overhaul" - Washington Post 1/31/2011
    > On March 3, Judge Vinson, in response to the February 18 Administration’s “Motion to Clarify” his decision regarding the constitutionality of the Affordable Care Act, ruled that he would not require the Administration to cease implementation of the Affordable Care Act, but does require the Administration to move forward on their appeal of his decision (finding the Act unconstitutional) within seven days.  He stated that imposing a stay on implementation would be unnecessarily disruptive and asked the Administration to request expedited consideration in either the federal appeals court or the U.S. Supreme Court. 
    > On March 10, 2011 both parties requested an expedited appeal to the U.S. Appellate Court.  See: State Response to DOJ Motion to Expedite |  FL Petition for Hearing, March 10.  The case will be heard by the U.S. Court of Appeals for the 11th Circuit on June 8, 2011. 
    > On April 8, 2011 an amicus brief was filed on behalf of a bipartisan group of 154 state legislators from 26 states, supporting the federal government's appeal.

  2. Commonwealth of Virginia v. Sebelius. (led by Virginia A.G.; initially in U.S. District Court for the Eastern District of Virginia; Civil Action No. 3:10-cv-188).  Filed March 23, 2010. Judge Henry Hudson in August 2010 declined to dismiss the suit. He issued a ruling declaring the individual mandate unconstitutional on December 13, 2010.  The appeal by the Administration was heard by the U.S. Court of Appeals for the 4th Circuit on May 10.
    > On September 8, 2011, the 4th U.S. Circuit Court of Appeals sided with the federal Health Reform Law in Virginia's healthcare reform legal challenge; the Appeals Court order was to "dismiss the case for lack of subject-matter jurisdiction."
    > Health Care Law Ruled Unconstitutional (NY Times, 12/13/2010)
    > Virginia: Reply Memo Summary Judgment, Oct. 4

  3. Thomas More Center v. Obama. (on behalf of 4 residents of S.W. Michigan; in U.S. District Court for the Eastern District of Michigan; Case No. 2:10-cv-11156-GCS-RSW) Filed March 23, 2010. On October 7, Judge George Steeh dismissed this case, stating that choosing not to obtain health insurance coverage qualified as an example of "activities that substantially affect interstate commerce." Plaintiffs appealed to the U.S. Court of Appeals for the 6th Circuit, with a hearing on June 1, 2011.
    > News article: "Justices are asked to hear challenge to health care law.  Describes the step as "The Supreme Court was asked on Wednesday to hear a challenge to the health care overhaul law, raising the possibility that the justices could rule on the matter by next summer, just months before the presidential election. Similar requests are likely to follow, and it is not clear which if any of them the court will agree to hear."  published 7/28/11 by the New York Times.

  4. Liberty University v. Geitner.  Also in Virginia, a private party suit by Liberty University was rejected in the U.S. District Court for the Western District of Virginia on November 30; the judge issued a 54-page ruling that granted the government’s request to dismiss the case. The appeal to the U.S. Court of Appeals for the 4th Circuit will be heard May 10, 2011.  [read news article]

  5. US Citizens Assoc. v. Sebelius. In another private party suit, the U.S. District Court for the Northern District of Ohio in a ruling Nov. 22 allowed part of a lawsuit challenging the constitutionality of the health reform law to move forward. Dismissing three claims brought by the U.S. Citizens Association, Judge David Dowd agreed to hear arguments that the law’s individual mandate violates the Constitution’s interstate commerce clause. The rejected claims asserted that the law violated plaintiffs’ freedom of association guaranteed by the First and Fifth Amendments, the due-process clause of the Fifth Amendment and plaintiffs’ right to privacy. “It is apparent to the undersigned that the controversy ignited by the passage of the legislation at issue in this case will eventually require a decision by the Supreme Court after the above-described litigation works its way through the various circuit courts,” Dowd wrote.

  6. Judge dismisses lawsuit claiming the ACA health care mandate violates religious freedoms.   U.S. District Judge Gladys Kessler, of the District of Columbia, on February 22, 2011 dismissed a lawsuit filed by the evangelical Christian legal group the American Center for Law and Justice on behalf of five Americans who prefer not to purchase health insurance. Three are Christians who say they rely on God to protect them. The two others have a holistic approach to medical care.   The Judge wrote that Congress "was acting within the bounds of its Commerce Clause power" when it mandated that individuals buy health insurance by 2014 or pay a penalty.  In upholding the law, Kessler said that the decision to forgo health insurance by some individuals leads to substantially higher insurance premiums for other individuals who do obtain coverage. "There is nothing extraordinary about Congress' use of its Commerce Clause power," she wrote, "to rein in the price of health insurance policies."

  7. (Kinder et al. v. Geithner et al., 1:10-cv-101) Missouri Lieutenant Governor Peter Kinder and six state residents sued U.S. officials in July 2010, claiming the law is unconstitutional because it requires people to buy health insurance. U.S. District Judge Rodney W. Sippel dismissed the case in April 2011 and Kinder appealed.  On July 18, 2011 officials from 21 other states filed a brief asking the federal appeals court in St. Louis to reinstate the lawsuit.

  8. Other -- There are a variety of other private-party filed lawsuits related to the 2010 federal health law.  [litigation list]