Lawmakers in six states are considering legislation to "protect" citizens from a federal health care plan by creating statewide initiatives to vote on whether to opt out of the national program -- even before Congress has created the program.
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Congress has yet to come up with a clear prescription for the nation's health care system. But some state legislators are already urging voters not to take the medicine.
Under Arizona's Health Care Freedom Act, which was passed by the state legislature this week, a voting initiative will be placed on the 2010 ballot that, if passed, will allow the state to opt out of any federal health care plan. Five other states -- Indiana, Minnesota, New Mexico, North Dakota and Wyoming -- are considering similar initiatives for their 2010 ballots.
"Our health care freedoms are very much at risk by health care reforms proposed in Washington, D.C.," said Arizona state Rep. Nancy Barto, the Republican legislator who sponsored the measure. "We needed to act as a state to protect our citizens and ensure that they will always be able to buy their own health care and not be forced into a plan they don't want."
But an opponent of the bill, state Rep. Phil Lopes, says the measure has less to do with individual freedom and more to do with the protecting the status quo. "The proponents of this are saying the system we have now works and we don't want any kind of reform," the Democratic legislator said. "This flies in the face of what the public tells us they want."
Not so, says Christine Herrera, director of the Health and Human Services Task Force for the American Legislative Exchange Council (ALEC). The group's 1,800 state legislator members have endorsed a resolution opposing a Medicare-modeled federal health plan and a national health insurance exchange, two concepts that are gaining ground in Washington.
"Our state legislatures are looking at what's going on in Washington as trampling state's rights," Herrera says.
Some state legislators say they worry that a government-mandated program will effectively eliminate their traditional role in regulating health insurers -- an important power base. Others raise constitutional concerns. "The real goal of national health insurance exchange isn't competition -- it's a federal power grab that flies in the face of the Tenth Amendment," says Wisconsin state Rep. Leah Vukmir, a Republican.
The Tenth Amendment ensures that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It's the same constitutional roadblock Franklin D. Roosevelt ran into during the Great Depression when he tried to ram through the first round of recovery programs under the New Deal. In a series of rulings, the U.S. Supreme Court found the National Recovery Act, the Agricultural Adjustment Act and several other recovery programs unconstitutional.
But constitutional scholars say it's unlikely history will repeat itself with health care reform efforts. "It's hard to imagine Congress passing anything that would be plausibly challengeable under the Tenth Amendment, but it's certainly theoretically possible," said Paul Bender, professor of constitutional law at Arizona State University. He said Congress has broad powers to regulate interstate commerce, which would include something as big as health care.
But Bender also said he sees a striking similarity between the current makeup of the Supreme Court and the "Nine Old Men" who stymied FDR's sweeping reform efforts in the 1930s. "Both sets of jurists seem to share a belief that the balance of power has shifted too far in favor of Congress at the expense of the states," Bender said.
Some state lawmakers who oppose President Obama's efforts to implement a national health care plan say the inevitable result will be socialized medicine. "The public plan and national health insurance exchange will squeeze out private insurance and put us on the road to single-payer health care," warns Georgia state Sen. Judson Hill, a Republican.
"Having the public plan now will mean socialized medicine later," he said.
Hill and other state legislators expressed concerns that millions of people will drop their private coverage if there is political pressure to keep a public plan's premiums low and benefits high. And if private insurers leave the market, they say, consumers will essentially be left with no choice of plans and no control over how their health care dollars are spent.
"Pure speculation," says Lopes. "In 1964 this was the same argument insurance companies made with President Lyndon Johnson when he proposed Medicare. Medicare did not do away with private insurance companies. They did very well."
"Protecting the rights of individuals to be in control of their health and health care must be a fundamental component of health care reform," says Dr. Erick Novack, chairman of Arizonans for Health Care Freedom, which promoted the state's ballot measure. "We are confident that the people of Arizona will vote to ensure their own rights."
With a constitutional challenge to health care reform problematic at best, that vote may turn out to be largely symbolic. But for now, that doesn't seem to be stopping other states from following Arizona's lead.
