State Laws and Actions Challenging Certain Health Reforms

Richard Cauchi 12/17/2018

In response to the federal health reform law, the Patient Protection and Affordable Care Act (PPACA or just ACA)*, and separate state reform initiatives, some members of at least 48 state legislatures proposed legislation to limit, alter or oppose selected state or federal actions. The results on the state level, as of mid-December 2018, vary widely, as detailed below and in separate NCSL reports on Health exchanges and on Medicaid expansion.

Update and Archive Notice:

For nine years, 2010 to 2018, some states and courts played a central role in seeking or demanding change in the federal ACA. In 2017-18, much health policy focus has shifted to discussions, proposals and congressional action on multiple alternative approaches, renamed the "American Health Care Act (AHCA) and related congressional measures, none of which became law. In December 2017, Congress passed the Tax Cuts and Jobs Act, which eliminated the individual mandate penalty, effective Jan. 1, 2019, and delayed an industry tax.

Note: NCSL takes no position on state health laws, legislation or policies, and is not responsible for material contained on third party websites.

  • News Update Dec. 17, 2018:
    District Judge Rules ACA's Individual Mandate Unconstitutional, Declaring Entire Law Invalid

KEY TAKEAWAYS:
• A federal district judge in Texas issued an opinion that the entire ACA is invalid because Congress reduced to $0 the tax penalty tied to its individual mandate, .
•  In early 2018 the challenge was initiated by 20 state AGs; in April the ACA law was defended by 16 other states and D.C.
    (See NCSL historical legislative activity timelines below)

•  The ACA continues to be active law, pending the appeals process, the White House said.

•  The legal fight is widely expected to reach the Supreme Court.

A federal District Court judge in Fort Worth Texas on Dec. 14, 2018 “handed Republican state attorneys general a victory in their challenge, "Texas vs Azar," to the Affordable Care Act, ruling that the entire law was rendered invalid by Congress zeroing out the penalty tied to its individual mandate.” The plaintiffs' case, filed in February, centered on what they described as "the inseverability of the ACA's individual mandate—which the Supreme Court upheld in 2012 as a tax—from the rest of the law. Since the mandate's tax penalty for noncompliance will drop to $0 on January 1, 2019, the mandate must be unconstitutional and the entire ACA must be invalid, too, the plaintiffs argued successfully at the District Court level. While the Department of Justice (DOJ) continues to represent the defendants in this lawsuit, it has also sided against key provisions of the law, agreeing that the individual mandate was rendered unconstitutional but arguing that only a handful of the ACA's other provisions are inseparable from the mandate.”     •  Read more: HealthLeaders Media 12/14/2018
•  NCSL Legal Blog: What's Next for the Affordable Care Act? -posted Dec. 18, 2018
•  U.S. Court Documents – North District Fort Worth Division: Federal Judge Rejects Entire ACA, Declaring Individual Mandate Unconstitutional by HLMedit on Scribd
•  "Jost: Court Decision to Invalidate the Affordable Care Act Would Affect Every American."  "As constitutional law expert Timothy S. Jost, JD explains in a new To the Point post, the ruling finds that because the 2017 tax cut act reduced the individual mandate penalty amount to zero, the individual requirement to have health insurance is no longer valid as a tax and is entirely unconstitutional, as is the rest of the ACA."The logic of Judge O'Connor's decision is simple and straightforward, but clearly wrong," says Jost, who adds that virtually all Americans would be affected if the decision were upheld. According to Jost, the decision will be appealed and likely blocked from going into effect. Nevertheless, it could still cause "untold confusion." - Read the post by The Commonwealth Fund, 12/17/2018.

  • "Twenty States Sue Federal Government, Seeking End to Obamacare"  (February 2018)

    "A coalition of 20 U.S. states sued the federal government in February over Obamacare, claiming the law was no longer constitutional after the repeal last year of its requirement that people have health insurance or pay a fine. Led by Texas Attorney General Ken Paxton and Wisconsin Attorney General Brad Schimel, the lawsuit said that without the individual mandate, which was eliminated as part of the Republican tax law signed by President Donald Trump in December, Obamacare was unlawful. "The U.S. Supreme Court already admitted that an individual mandate without a tax penalty is unconstitutional," Paxton said in a statement. "With no remaining legitimate basis for the law, it is time that Americans are finally free from the stranglehold of Obamacare, once and for all," he said. 
    •  20 States supporting the anti-ACA lawsuit include: Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin.
    •  16 States supporting the ACA and opposing the lawsuit include: California, Connecticut, Delaware, Hawaii, Illinois, Kentucky, Massachusetts, Minnesota, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington and District of Columbia.
    (Does not include non-court statements of support or opposition)Map: States opposing or supporting the court challenge to the ACA Dec 2018

•  Archive: NCSL reports on the 2017 congressional legislation H.R.1628, etc. are online.

The facts and descriptions in the remainder of this report are an accurate chronical of events and laws, but apply to the 2010-2017 federal statutes and are not updated to include any new 2018 legislation.

2015-16 Court Updates

  • On June 25, 2015 the U.S. Supreme Court voted 6-3 to uphold health insurance subsidies for people who purchased their insurance through a federal health insurance exchange. The ruling in King v. Burwell means that 6 million to 7 million people will continue to receive insurance subsidies. [Read more]
  • In June 2012, the U.S. Supreme Court upheld most provisions of the Patient Protection and Affordable Care Act, but rejected the portion of the law that would have penalized states that did not comply with the expanded eligibility requirements for Medicaid, making expansion optional and a state decision.
  • 2016 cases: Additional cases continue in 2016-17, especially on paying insurers for the cost-sharing assistance

NCSL will continue to update and analyze the law and its effects on states. [More, with text of cases | 2016-18]

Overview: Measures Enacted and Passed by States

Between 2010 and 2016, at least 22 state legislatures had enacted laws and measures related to challenging or opting out of broad health reforms related to mandatory provisions of the Patient Protection and Affordable Care Act (ACA).

Table 1: State Legislative Enactments and Ballot Results

Post-Supreme Court: States challenging or opting-out

This table does not include federally authorized state options for or against exchanges and Medicaid expansion, non-binding resolutions or memorials urging actions by federal or state government, nor measures still pending at the state level. Missouri: 2010 law provides that it is against Missouri public policy to implement or operate a health insurance exchange in Missouri.

2015-16 Sessions: A much smaller number of bills were considered - Earlier opposition enacted laws were expanded or amended in Arizona, Arkansas, South Carolina, and Tennessee. See NCSL's Innovations database for listings.

2014 Sessions: As of Dec. 30 at least 181 bills and resolutions in 38 states include opposition to, or proposed legislative alternatives to substantive provisions in the ACA. For 2014,15 such bills have been signed into law, in ten states.  

2013 Sessions: As of December 2013, there were 81 bills in 32 states, territories or D.C. that relate to challenges, opposition or alternatives to health reform.

NCSL 2013 Summary Report: States Opting-Out or Opposing Certain Provisions of the ACA.

Summaries by state are contained in the NCSL Health Reform Legislation Database - 2011-13 online .NCSL has compiled these and other ACA topic measures into an online database; visit this database web page. Select the keyword "Challenges, Opt-outs and Alternatives."  For more complete Exchange and Medicaid legislation, select those keywords in the database. These measures may include formal rejections of Medicaid expansion and prohibitions on running a state-based exchange. This number does not include all measures that may oppose HHS regulations or interpretations of implementation of the PPACA, such as mandated coverage of contraception, or optional steps such as administration and enforcement of insurance regulations.

Summary of Enacted Provisions: The 22 state laws and measures related to challenging or opting out of broad health reform including the Patient Protection and Affordable Care Act (PPACA) vary, using at least three general approaches.  Additional states have enacted measures considered non-conforming with the stated goals of the ACA, such as non-expansion of Medicaid, non-participation in the operation of the health exchange or marketplace, blocking individual health benefits such as contraception, or restrictions on navigators. These are detailed and tallied in other reports:

  • Legislative approval required. Nine states, Arizona, Arkansas, Georgia, Missouri, Montana, New Hampshire, North Carolina, Utah and Wyoming, have passed restrictions on further compliance with PPACA unless approved by the legislature.  The most recent actions were during 2015 in Arizona and Arkansas.
  • The individual and employer coverage mandate has been a primary focal point for state opposition. Eighteen states currently have statutory or state constitutional language providing that state government will not implement or enforce mandates requiring the purchase of insurance by individuals or payments by employers.  Because the U.S. Supreme Court upheld the individual coverage mandate, which does not require a state role, the federal law fully applies and any contradictory state laws will have no current effect on PPACA provisions. These state laws do aim at barring state agencies and employees from enforcing fines and penalties, as of 2014. These actions are distinct from the 26 states that were parties to the federal court challenge ruled on by the Supreme Court on June 28, 2012.
  • Interstate Health Compacts. Separately, nine states have recently enacted laws intended to create Interstate Health Compacts-- these take a first step toward allowing a group of states to join together to establish broad health care programs that operate outside of the PPACA or other federal law.  However, these compacts do not block PPACA implementation, and are not yet binding; they will require congressional approval because they seek to substitute state control where federal law and regulations exist.  These states (including Alabama, Georgia, Indiana, Kansas (2014) Missouri, Oklahoma, South Carolina, Utah and Texas) aim to obtain “primary responsibility for regulating health care goods and services” within their boundaries.  Utah repealed most of their compact statute in 2014.
  • State Nullification.  While 23 states have considered bills seeking to nullify the legal validity of the ACA, none of the bills have become law in their original form. One state, North Dakota, has enacted a law using portions of model state nullification language.  S. 2309 establishes by statute that, "The legislative assembly declares that the federal laws known as (PPACA) likely are not authorized by the United States Constitution and may violate its true meaning and intent as given by the founders and ratifiers." The original bill as filed provided that the ACA is "considered to be null in this state" and making it a criminal offense for any federal official to implement the ACA; however these two provisions were deleted and omitted from the signed law.
  • Restricting use of Navigators. More than a dozen states have enacted laws regulating and/or restricting the functions of navigators and others who assist consumers in selecting health insurance in exchanges or Marketplaces.  These measures are detailed in another NCSL report on Exchanges. 

The legal language opposing reforms varies from state to state and includes statutes and constitutional amendments, as well as binding and non-binding state resolutions.
Nine state legislatures adopted some type of non-binding resolution or memorial to the federal government.  These are not repeated in the table above.

* PPACA also has been commonly termed "Obamacare," a name referenced within some state filed legislation.

Anit-Reform Laws

NCSL's Health Reform 2011-2013 State Legislative Tracking Database provides details by state. This online feature includes latest listings with individual bill summaries and final status, such as failed, enacted or vetoed. >> Select "Challenging/Alternatives" for the state-by-state listing on this topic.

The challenge by state legislation approach garnered state legislative interest during 2009-2012 in significant part due to the American Legislative Exchange Council's (ALEC) model "Freedom of Choice in Health Care Act," which the organization described as "How Your State Can Block Single-Payer and Protect Patients' Rights."  The ALEC-endorsed language mirrors Arizona Proposition 101, which was narrowly defeated in 2008 but passed on their November 2010 ballot.

Notes:  * Ohio: A citizen-initiative petition for a constitutional amendment passed on the November 2011 ballot. Similar pending Ohio legislation was not enacted in 2011. 
** South Carolina's budget for 2011-12 included language stating "If federal law permits, the State of South Carolina opts out of" certain provisions of the ACA.  This is binding but not statutory.

2011-2015 Highlights of Completed Legislative Actions

Also members may request offline: Archive report: 2009-2010 Challenge Laws and Bills

Signed Laws and Binding Resolutions for Ballot Questions

Alabama - HB 60, passed House and Senate; enacted without governor's signature, June 9, 2011. Opposes elements of federal health reform, providing by constitutional amendment that residents may provide for their own health care, and that "a law or rule shall not compel any person, employer, or health care provider to participate in any health care system."  This amendment required voter approval or disapproval on the November 6, 2012 ballot.  "Amendment 6" Passed with 59.0% Yes votes.

Alabama - HB 109, enacted, became law as Act No. 2013-420, May 20, 2013. Establishes the interstate "Health Care Compact" in the state of Alabama, allowing states that join the compact to propose state health policies that could replace federal provisions, citing, "Each member state, within its state, may suspend by legislation the operation of all federal laws, rules, regulations and orders regarding health care that are inconsistent with the laws and regulations adopted by the member state pursuant to this compact." The laws also seeks to use appropriated federal funds, redirected to state-specified programs.  The interstate compact plan requires prior approval by the U.S. Congress before it becomes a recognized as interstate compact.

Arizona - H 2643, enacted, signed into law by the governor, April 10, 2015. Prohibits the "funding or implementation of a state-based health care exchange or marketplace." Also prohibits the state and political subdivisions "from using any personnel or financial resources to enforce, administer or cooperate with the Affordable Care Act."

Arkansas - HB 1053, signed into law by the governor as Act No. 276, March 13, 2014.   Restricts ACA-related activities by providing that the State Insurance Department shall not allocate, budget, expend, or utilize any appropriation authorized by the General Assembly for the purpose of advertisement, promotion, or other activities designed to promote or encourage enrollment in the Arkansas Health Insurance Marketplace or the Health Care Independence Program, including unsolicited communications mailed to potential recipients; television, radio, or online commercials; billboard or mobile billboard advertising; advertisements printed in newspapers, magazines, or other print media; and Internet websites and electronic media. Also would prohibit responding to an inquiry regarding the coverage for which a potential recipient might be eligible, including without limitation providing educational materials or information regarding any coverage for which the individual might qualify. Also see S 111.

Arkansas - SB 111, signed into law by the governor as Act No. 257, March 7, 2014. Provides that the Dept. of Human Services, Div. of Medical Services shall not allocate, budget, expend, or utilize any appropriation authorized by the General Assembly for the purpose of advertisement, promotion, or other activities designed to promote or encourage enrollment in the Arkansas Health Insurance Marketplace or the Health Care Independence Program, including without limitation, unsolicited communications mailed to potential recipients; television, radio, or online commercials.  Also see H 1053.

Arkansas - S 343, signed by the governor, March 12, 2015.  Prohibits the establishment through existing state law of a state-based health insurance exchange in the state under the ACA. Referencing the King v. Burwell case before the U.S. Supreme Court, it requires a "future act of the General Assembly" for any action related to the previously authorized ''Arkansas Health Insurance Marketplace" or its board.

Florida - H 1193, passed House and Senate; signed by the governor as Chapter No. 2011-126, June 2, 2011.  By state statute,  prohibits a person from being compelled to purchase health insurance except under specified conditions including dangerous occupation, voluntary enrollment in public benefits or contracts between private parties.
Florida - S 2, passed Senate and House; sent to the secretary of state, 5/4/2011. Joint resolution proposes 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, permit any person or employer to purchase lawful health care services directly from health care provider, or permit health care provider to accept direct payment from person or employer for lawful health care services. This amendment required voter approval or disapproval on the November 6, 2012 ballot. "Amendment 1" Failed, with 48.5% Yes votes.

GeorgiaH 461, passed House and Senate; signed by the governor as Act 10, April 20, 2011.  Adopts the interstate Health Care Compact; provides for member state control over personal health care decisions; vests regulatory authority to the states; provides that member states resolve by the adoption into law provisions of the Health Care Compact to define health care as including an individual or group plan that provides or pays the cost of health care, services, or supplies; provides for the right to federal monies.

Georgia - H 943, H 990 both passed House and Senate as amended (from H 707); signed by the governor, April 15, 2014. Prohibits any agency or state action to expand Medicaid or accept any federal grant money to establish a state-run health exchange.  Also ends the Univ. of Georgia Health Navigator Program. Titled "Georgia Health Freedom Law;" goes into effect July 1.

Indiana S 461, passed Senate and House; signed by the governor as Public Law No. 160-2011, May 12, 2011.  Provides by statute that "a resident of Indiana may not be required to purchase coverage under a health plan. A resident may delegate to the resident's employer the resident's authority to purchase or decline to purchase coverage under a health plan."   Also authorizes consumer protections, rate review and rescissions compatible with the ACA.  Note: Other provisions restricting agencies from implementing ACA provisions were deleted from the final enacted bill.
Indiana H 1269 of 2012; signed by the governor as Chapter 150 of 2012 on March 19, 2012.  Authorizes the state to join the "Health Care Compact," requiring member states of the compact to take action to secure the consent of Congress for the compact; asserting that member states of the compact have the primary responsibility to regulate health care in their respective States. Also seeks to establish that “Each member state, for the member state's jurisdiction, may, to the extent allowed under the Constitution of the United States and the constitution of the member state, suspend by legislation federal laws, regulations, and orders concerning health care that are inconsistent with the laws and regulations adopted by the member state under the compact.”  Also creates the Interstate Advisory Health Care Commission and would assert the rights of member states to certain federal health money.

Kansas - H 2182, passed House and Senate; signed by the governor, May 25, 2011.  Opposes specific provisions of federal health reform, providing (in Sec. 7) by state statute that "The government shall not interfere with a resident's right to purchase or refuse to purchase health insurance." Also provides that residents, employers and health providers "shall not be required to pay penalties or fines" for direct payment without using health insurance; the "government shall not enact a law" that "would impose a form of punishment for exercising these rights." Effective date is July 1, 2011.

Kansas - H 2553 of 2014, passed House and Senate; signed by the governor, April 22, 2014.  Accepts and adopts membership in the Health Care Compact; provides that each member state, within its state, may suspend by legislation the operation of all federal laws, rules, and regulations, and orders regarding health care that are inconsistent with the laws and regulations adopted by the member state pursuant to the compact.

Kentucky - H 265 passed House and Senate, signed by the governor, April 11, 2012. 2012-14 Appropriations act section 10, authorizes the state to "to explore the feasibility of an Interstate Reciprocal Health Benefit Plan Compact (IRHBPC) with contiguous states" to allow Kentucky and residents of contiguous states to purchase health benefit plan coverage among the states participating with the compact. The purposes of this compact are, through means of joint and cooperative action among the compacting states to promote and protect the interest of consumers purchasing health benefit plan coverage.  (Note: this law is not a challenge to the provisions of PPACA; it is included as an alternative approach, for comparative information purposes.)

Missouri - H 45, passed House and Senate; signed by the governor, 7/8/2011. Provides that "any federal mandate implemented by the state shall be subject to statutory authorization of the general assembly." Creates a new $20,000 employer tax deduction for each new full-time job created with an annual salary of at least the average annual county wage if the small business also offers new employee health insurance and pays at least 50% of the health insurance premiums of all full-time employees who opt into the offered plan. Any new proposed rule must "Certify that the rule does not have an adverse impact on, or must exempt small businesses with fewer than fifty full- or part-time employees."
Missouri - H 423, passed House and Senate; became law without governor's signature, 7/14/2011. Establishes the interstate Health Care Compact, which would pledge member states to act jointly to oppose certain elements within health reform.

Missouri - S 464, passed Senate and House, sent to Secretary of State, 5/31/2012; governor's signature not required.  Would amend state law chapter 376, a new section relating to the authority for creating and operating health insurance exchanges in Missouri. Would prohibit the establishment and operation of health insurance exchanges in Missouri unless the exchange is created by a legislative act, an initiative petition, or referendum, requiring voter approval.  S 464, as Proposition E, was on the statewide ballot November 6, 2012 for a binding vote. "Proposition E" Passed with 61.8% Yes votes.

Montana - S 125, passed Senate and House; governor's amendments rejected; signed by the governor as Chapter 402, May 13, 2011.  Opposes elements of federal health reform, providing that by state law state agencies "may not implement or enforce in any way the provisions" or any federal regulation or policy implementing federal health reform "that relates to the requirement for individuals to purchase health insurance and maintain minimum essential health insurance coverage." Bars public employers or state employees from implementing or enforcing participation in the individual mandate to purchase health insurance.
Montana - S 418, passed House and Senate; enacted as Chapter 310 and sent to the Secretary of State, May 4, 2011.  Would prohibit, by state statute, the federal and state government from mandating the purchase of health insurance coverage; would prohibit imposing penalties related to health insurance decisions. The act will be submitted by referendum to voters for approval or disapproval in the November 2012 state election.

New HampshireS 148, passed Senate and House; became law as Chapter 266 without governor's signature, 7/14/2011.  Provides by insurance statute that a resident of New Hampshire shall not be required to obtain, to maintain, or be assessed a fee or fine for failure to obtain health insurance coverage.  Effective date July 1, 2011.
New Hampshire - H 601, Passed House and Senate; became law as Chapter 264 without governor's signature, 7/14/2011.  By statute, requires that before establishing standards for enforcing the provisions of the federal Affordable Care Act, the insurance commissioner shall obtain approval from a newly created N.H. legislative Health Insurance Reform Oversight Committee. The provision applies to enforcing the immediate "consumer protections and market reforms."  Effective date July 1, 2011.
New Hampshire - S 1297, passed Senate and House, signed by the governor as Chapter No. 2012-231, June 18, 2012.  Prohibits the state from establishing a state based health insurance exchange. Also provides that in the event a federally-facilitated exchange is established for New Hampshire, the insurance commissioner retains authority with respect to insurance products sold in New Hampshire "on the federally-facilitated exchange to the maximum extent possible by law." Also required the state attorney general to join the lawsuit challenging the Patient Protection and Affordable Care Act and require federal grant moneys received by the state for implementation of the PPACA to be returned to the federal government. Effective date June 18, 2012.

North Carolina - S 4 was enacted as Act No. 2013-5, March 6, 2013. By state law, it specifies the state's intent not to operate a state-run or "partnership" health benefit exchange, providing that future Medicaid eligibility determinations would be made by the state rather than the federally facilitated exchange, also rejects the Affordable Care Act's optional Medicaid expansion. It does permit use of federal grants for premium rate review.

North DakotaH 1165 was enacted and signed by the governor, April 4, 2011; providing by state law that a resident is not required to have a policy of individual health coverage, and would not be "liable for any penalty, assessment, fee, or fine."  Applies regardless of whether the resident has or is eligible for health insurance coverage under a policy, through an employer or under a plan administered by the state or federal government. Continues an exception if health coverage is required by a court or by the state Department of Human Services through a court or administrative proceeding.

North Dakota - S 2309 was enacted and signed by the governor, April 27, 2011. [Full text]  Using parts of  model language invoking "nullification," establishes by statute that, "The legislative assembly declares that the federal laws known as (PPACA) likely are not authorized by the United States Constitution and may violate its true meaning and intent as given by the founders and ratifiers." ... no provision "may interfere with an individual’s choice of a medical or insurance provider except as otherwise provided by the laws of this state."

Ohio - Issue #3, a citizen-initiated constitutional amendment was approved by voters on the November 8, 2011 ballot. It seeks to preserve their "freedom to choose their health care and health care coverage."  It passed 66 percent Yes to 34 percent No.  Similar pending Ohio legislation was not enacted in 2011-2012 (as of 8/10/12).

Oklahoma - S 722 was enacted and signed by the governor, May 18, 2011.  Adopts the interstate Health Care Compact; provides for member state control over personal health care decisions; vests regulatory authority to the states; provides that member states resolve by the adoption into law provisions of the Health Care Compact to define health care as including an individual or group plan that provides or pays the cost of health care, services, or supplies.

South Carolina - H 3700 State budget for fiscal year 2011-12 was enacted and signed by the governor, August 2, 2011.  It includes Section 89.126, that provides that "If federal law permits, the State of South Carolina opts out of "certain provisions in the Affordable Care Act, including the individual mandate or minimum coverage requirement, the employer contribution requirement, and insurance expansions including coverage for adult dependents up to age 26. (It does not reference enforcement by state officials or agencies)
South Carolina - S 836, passed Senate and House, signed by the governor as Act 221, 6/21/2012.   Enacts state participation in the Interstate Healthcare Compact; providing that state compact members must take action to obtain congressional consent to the compact; providing that the legislature is vested with the responsibility to regulate healthcare delivered in their state; provides for healthcare funding; also establishes the S.C. interstate advisory Health Care Commission.

South Carolina- the state budget for FY 2016 and FY 2017 contained language prohibiting or restricting the state role with health exchanges or other state implementation unless the legislature gave prior approval to such provisions. 

Tennessee - S 79 was enacted and signed by the governor as Chapter 9, March 18, 2011.  A statute declaring it state public policy that every person within the state "shall be free to choose or to decline to choose any mode of securing health care services without penalty or threat of penalty;" it requires that no state or local public official, employee, or agent "shall act to impose, collect, enforce, or effectuate any penalty in this state."

Tennessee - H 937, enacted and signed by the governor, 4/14/2014.  Prohibits, by statute, the state, the TennCare or Medicaid program or its residents from participating in any state option for Medicaid eligibility expansion authorized under the federal PPACA.

Tennessee - SJR 91 was adopted and signed Signed resolution 4/30/2015.  Non-binding resolution; requests lawsuit against any fines.

Texas - SB 7, passed Senate, passed House, 96y-48n, 6/27/2011; signed by the governor, July 19, 2011.  State market reform act; includes an interstate health care compact, allowing Texas to partner with other states to ask the federal government for control — both fiscal and governmental — over Medicare, Medicaid and commercial coverage; also directs state officials to seek a waiver from Washington to operate Medicaid with a federal block grant.

Utah - H 175 and S 208 of 2012 - Passed House and Senate; signed by the governor, 3/19/2012.  Provides by statute that the state join an interstate Health Care Compact, including a pledge to take joint and separate action to secure congressional approval "in order to return the authority to regulate health care to the member states." Would seek to authorize that "Each member state, within its state, may suspend by legislation the operation of all federal laws, rules, regulations, and orders regarding health care that are inconsistent with the laws and regulations adopted by the member state pursuant to this compact."
Utah - H 131 of 2013 - signed by the governor as Chapter 101, 3/26/13.   Renames the Constitutional Defense Council and creates the Commission on Federalism; provides for the repeal of the State Health Compact by July 1, 2014, and subjects these provisions to a 10-point sunset review prior to repeal.

Virginia - SB 283 passed Senate and House and became law as Chapter 106 of 2010 on March 10, 2010 becoming the first such statute in the nation. 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.

Wyoming - SJR 2, approved by both House and Senate by a 2/3rds vote; governor's signature not required.  A constitutional amendment, stating that residents have the right to make their own health care decisions, while "any person may pay, and a health care provider may accept, direct payment for health care without imposition of penalties or fines for doing so." Also provides that the state "shall act to preserve these rights from undue governmental infringement."  Approved by voters on the November 6, 2012 ballot by majority vote.
Wyoming - S 58 of 2012 - Enacted by Senate and House; signed by the governor as Chapter 61, 3/9/2011.  Amends the duties of the Wyoming Health Insurance Exchange Steering Committee to require a study report with 3 options including 1) an exchange based on Wyoming data without influence from the health care reform acts, 2) using selected parts of required federal features and 3) an exchange in complete compliance with the Act. The statute limits the state's authority to operate a federally required health insurance exchange, restating that "No state agency or any person representing the state of Wyoming shall, prior to April 1, 2013, commit the state" to operating an exchange.

Non-Binding Resolutions, Adopted 2011-2012

Colorado - HR 11-1010, Adopted non-binding House-only resolution, citing the 10th Amendment, requests the U.S. Congress to repeal the individual mandate required by PPACA; also strongly encourages Congress to "recognize individual states' efforts to reform health care by grandfathering any state laws, regulations, or practices intended to contain costs, improve quality, increase consumerism, or otherwise implement health system reform concepts."
Colorado - HR 12-1003 of 2012, Adopted non-binding House-only resolution, requesting the U.S. Congress to call a constitutional convention to propose an amendment to repeal the Affordable Care Act. Article 5 requires two-thirds of the legislatures to make such a formal request in order to convene a constitutional convention.  
 > Article: Colorado House Seeks U.S. Convention to Repeal ACA.

Missouri - SR 27Adopted non-binding Senate-only resolution calls on the state Attorney General to file an independent lawsuit or join 20 state attorneys general in their lawsuit challenging the constitutionality of the federal health care reform legislation, including to "aggressively defend the validity of Proposition C as voted on by the people of Missouri in the 2010 Missouri General Election."

New Hampshire - SR 9, Adopted Senate-only resolution, requests an opinion of the state Supreme Court justices concerning the constitutionality of H 89, a legislative measure requiring the attorney general to join the lawsuit challenging the Affordable Care Act.

North Dakota - HCR 3016, Adopted non-binding concurrent resolution, urges the U.S. Congress to repeal the Patient Protection and Affordable Care Act. Adopted by the House and Senate, April 18, 2011.

South Dakota - HCR 1004 Adopted non-binding resolution, opposes elements of the Affordable Care Act, declaring that the "Legislature finds that in the absence of such specific (constitutional) authority," and in conjunction with "powers retained by the people and the states pursuant to the ninth and tenth amendments, all such federal legislation is inherently unconstitutional. Adopted by House 42y-26n; adopted by Senate 28y-5n.

Passed But Vetoed by Governors

Arizona - S 1088, passed House and Senate; vetoed by governor, May 28, 2011. Would oppose any state role in compulsory participation in a health care system or purchase of health insurance; would prohibit any government official from enforcing prohibitions on purchase or sale of health insurance in private health care systems otherwise authorized by the laws of the state; would affirm a right to direct payment or purchase of lawful health care services; would prohibit threats of penalties, fines, taxes, salaries, wage withholding, surcharges or fees to punish or discourage the exercise of such right. Also would establish an Interstate Health Freedom Compact, to unify states opposing the ACA.
Arizona - S 1592, passed Senate and House; vetoed by governor, 4/18/2011. Would authorize the Governor to enter into the "Interstate Health Care Freedom Compact," intended to guarantee the right and freedom of residents to pay or not to pay directly for health care services and to participate or not to participate in health plans and health systems. Compacts would coordinate across state lines to enforce "health care freedom criminal laws" which seek to make it a crime to interfere with residents' health services, specified above. Also would create an "Interstate Advisory Health Care Commission" with representatives from each member state. [See Governor Brewer's veto message, citing state separation of powers and added fiscal burden.]

Idaho - H 298,  passed House and Senate; vetoed by governor, 4/20/2011.  Would have provided that no person within the State shall be compelled to participate in a government health insurance program not authorized by the State; provides that the  Affordable Care Act shall not be enforced, administered or enacted by the State and no department, agency or political subdivision shall accept or expend moneys related to the implementation of discretionary provisions of the Act, such as exchanges and insurance consumer protections. [See Governor Otter’s executive order of April 20, which includes similar restrictions on the state accepting funds or involvement.]

Minnesota - S 760, passed Senate and House; vetoed by governor, May 24, 2011.  Would have opposed selected provisions of the ACA, by declaring that the public policy of the state "is that every person within the state of Minnesota is and shall be free to choose or decline to choose any mode of securing health care services without penalty or threat of penalty." Also would provide that no state official or employee "shall act to impose, collect, enforce, or effectuate any penalty" related to ACA mandates for coverage.

Montana - H 526, passed Senate and House; vetoed by governor, 5/12/2011.  Would provide for an "Interstate Health Care Freedom Compact;" intended to guarantee the right and freedom of residents to pay or not to pay directly for health care services and to participate or not to participate in health plans and health systems. Compacts would coordinate across state lines. Would create advisory representatives from each state and require congressional approval.
Montana - S 224, passed Senate and House; vetoed by governor, 4/21/2011.   Would require legislative approval for any grant application, expenditure or implementation of the federal Affordable Care Act.
Montana - S 228,  passed Senate and House; vetoed by governor, 4/13/2011. Would prohibit the creation of a state-based health insurance exchange.

North Carolina - H 2, passed House and Senate; vetoed by governor, 3/5/2011; veto override failed in House 3/9/2011.  Would oppose elements of federal health reform, providing by state law that "no law or rule shall compel a person" to provide for health care services or medical treatment for that person or contract with, or enroll in, a public or private health care system or health insurance plan as a condition of receiving state economic aid.

Texas - H 335, passed House and Senate; sent to the governor, 5/30/2011; vetoed by governor 6/17/2011.  Would provide that a state agency may not implement requirements for mandated provisions of federal health care reform laws unless the agency submits a report of expenses incurred.  Relates to required purchase of health insurance by a person or employer, penalties imposed for failure of employers to provide such insurance, expanded eligibility for the state Medicaid program or state child health plan program, mandates and new health insurance programs.

Archive: PPACA Opposition on the Ballot - November 2012

Opponents to federal health reform have widely considered and sought to use the ballot box as a way to establish a formal state position, challenging or disagreeing with provisions in PPACA.  On November 6, 2012, statewide voters in five states were asked to say "yes" or "no" to such questions. The results were as follows:

  • Alabama: Constitutional amendment to "Prohibit Mandatory Participation in any Health Care System."  Result -"Amendment 6" Passed with 59.0% Yes votes.
  • Florida: Constitutional amendment to "prohibit laws or rules from compelling any person or employer to purchase, obtain, or otherwise provide for health care coverage." Result - "Amendment 1" Failed, with 48.5% Yes votes.
  • Missouri: State law change, "Prohibiting a State-Based Health Benefit Exchange."  Result - "Proposition E" Passed with 61.8% Yes votes.
  • Montana: State law change to "Prohibit Health Insurance Purchase Requirement."  Result -"LR-122"  Passed with 67.1% Yes votes.
  • Wyoming: Constitutional amendment titled "Health Care Freedom."  Result -  "Amendment A" Passed with 76.9% Yes votes.

Some experts conclude that the proposed language, constitutional or statutory, which was all drafted and approved by legislatures before the United States Supreme Court decision in June 2012, is now largely moot or symbolic.  However, others note that while states cannot block the federal law itself, they may block the optional role of state agencies and employees from enforcing it as of 2014.  If so, federal implementation and enforcement is an automatic, routine provision in the 2010 federal law.  The map below illustrates the current questions and the prior ballot history from 2010 and 2011.

See NCSL's 2012 Ballot Question database for all health-related and other questions, including summaries.

Map of 5 states with Nov. 2012 PPACA Ballot questions

Section 3:  Summary of 2009-2010 Legislative and Ballot Question Results

Nov. 2, 2010, ballot questions. A focus of attention shifted to the three states with proposed constitutional ballot questions facing voters in Nov. 2, 2010, elections:

State constitutional amendments:  In 30 of the states, the filed measures included a proposed constitutional amendment by ballot question.  In a majority of these states, their constitution includes an additional hurdle for passage--requiring either a "supermajority" of 60 percent or 67 percent for passage, or requiring two affirmative votes in two separate years, such as 2010 and 2011.

Federal constitutional amendment:  Idaho called for adding a U.S. 28th Amendment 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. This was adopted by both Senate and House on March 29, 2010.  Florida adopted a non-binding resolution referencing a federal constitutional amendment process.

Changing state law: In at least 16 states, proposed bills aimed to amend state law, not the state constitution. These require a simple majority vote and action by the governor; they also can be re-amended or repealed by a future state law. So far in 2010, seven states have enacted such laws. Virginia became the first to enact a new statute section titled, "Health insurance coverage not required." It became law on March 10, 2010. Georgia, Idaho, Louisiana, Missouri, Utah and Arizona also each enacted similar statutes.

2010 Legislative History: Seven States With Signed or Enacted "Challenging" Statutes.

  • 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.

2010 Constitutional Ballot Questions Passed in Two States

  • Arizona's resolution of June 2009 was the first constitutional ballot question to have passed the legislative process; it was approved by a 55 percent yes to 44 percent no vote on November 2, 2010.
  • 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.

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 by a  47% Yes to 53% No vote statewide.

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.   In 2011 the legislature placed a new proposal on the ballot for 2012.

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-only 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, passed after the November 2010 election,  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.

Measures That "Did Not Pass" in 2009-10

For the 2009-2010 legislative sessions, 30 states 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.   An "interim study proposal" resolution was not acted on in Arkansas.

Archive Report: Filed Bills and Resolutions for 2009-2010  - A state-by-state table of all filed measures is available in a separate NCSL online report

The Affordable Care Act provides a variety of optional state funding grants to pay for or encourage implementation of specific provisions of the ACA. There is no uniform, official list of states that have "refused" such funds, since applying for funds, or meeting most of the federal criteria, is voluntary on the part of states.  The following are examples of highlighting “returned” funds, included some  information in NCSL's Health Reform: State Actions Newsletter. Hyperlinks in the title of the articles below relate specifically to funding. [List updated April 2013]

States Return Federal Grants After Florida Judge Ruling | The following are examples of states returning or not applying for federal grants:

  • Alaska Governor Sean Parnell elected not to apply for federal funds to establish a health insurance exchange.
  • Florida Governor Rick Scott returned $1 million that was awarded to the state to begin implementation planning for health insurance exchanges and another $1 million that would have funded a system to monitor premiums and insurance-rate changes.
  •  Kansas Returns $31 Million Early Innovator Grant. In August 2011, Kansas Governor Sam Brownback returned the state’s $31.5 million early innovator grant.
  • Louisiana’s $998,416 exchange planning grant was returned in March 2011.
  • New Hampshire’s House Republican leaders asked the Executive Council to block a $610,000 federal planning contract that would use federal grant funds to create a state health insurance exchange shortly after the Legislative Fiscal Committee voted 9-1 to accept it. The New Hampshire bill (HB 601) that became law in July 2011 instructed the state insurance commissioner to return $666,000 in exchange planning grant funds.
  •  Oklahoma Returns Federal Grant. Oklahoma’s $54 million early innovator grant was returned in April 2011.
  • Wisconsin.  On January 18, 2012 Wisconsin Governor Scott Walker announced he will return $37.6 million in Early Innovator Grant program funding to the federal government. These grants were given to six states and one multistate consortia last February to help “design and implement the information technology needed to operate health insurance exchanges.” Wisconsin joins Kansas and Oklahoma in returning these innovator grants. Together, these three states have returned more than $123 million in federal funding to help implement the Affordable Care Act. In February 2011, Governor Walker also returned a $637,114 federal “consumer assistance” grant.

Sources: NCSL state research; Status of Federal Funding and Implementation of Health Insurance Exchanges by Congressional Research Service

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.

 

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.

Legal Definitions

Nullification: (As applied to proposed state law)  The (proposed) Health Care Nullification Acts declare that “the federal law known as the ‘Patient Protection and Affordable Care Act,’ signed by President Barack Obama on March 23, 2010, is not authorized by the Constitution of the United States and violates its true meaning and intent as given by the Founders and Ratifiers, and is hereby declared to be invalid, shall not be recognized, is specifically rejected, and shall be considered null and void and of no effect.”  [description by 10th Amendment Center]

Petition for Writ of Certiorari.  (informally called "Cert Petition.")  A document which a losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court.  It includes a list of the parties, a statement of the facts of the case, the legal questions presented for review, and arguments as to why the Court should grant the writ.

Writ of Certiorari.  A decision by the Supreme Court to hear an appeal from a lower court.

Archive: 2011 NCSL Educational sessions:

  • The Affordable Care Act and the U.S. Supreme Court: Issues and Implications    The U.S. Supreme Court will hear oral arguments on the constitutional challenges to the Patient Protection and Affordable Care Act. This NCSL Fall Forum session reviewed the key issues before the court.
    Speaker:  Mark B. Seidenfeld, J.D., Professor of Administrative Law, Florida State University College of Law, Tallahassee, Florida   [Slide Presentation, November 30, 2011]
  • States Opting Out: Health Reform Challenges, Waivers and Alternatives  NCSL session held August 10, 2011 (click here for audio online)   The ink is dry but the action is intense, as some legislators debate using state laws, constitutions or courts to take on parts of the Affordable Care Act.. Hear two leading legal experts comment on constitutional principles and latest developments. Then hear responses from six health leaders in states that have enacted their own approaches – challenging and/or implementing reforms.    [CLE]

External Reports and Opinions

Obamacare: What We Know Now by Cato Institute, Michael D. Tanner: For all intents and purposes, Obamacare has been fully implemented. And while much of the media coverage has been dominated by the technical failures of the program’s initial rollout, we are also learning much about the impact of health care reform on employers, providers, patients, taxpayers, and individual consumers. In a new study, Cato scholar Michael D. Tanner illustrates how the law’s problems go far beyond a failed website. Published 1/27/2014.

NCSL Health Reform resources: www.ncsl.org/healthreform including 2014 updates.