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WSJ: Health Backlash in the States

The provinces revolt against loss of choice.

FEBRUARY 20, 2010

The backlash against ObamaCare is moving beyond the Tea Parties and has now arrived in state capitals. In more than 30 states, legislators are proceeding to pass statutes or ballot initiatives that would guarantee the right to choose medical services and insurance.

These laws are generally called Health-Care Freedom Acts. If enacted, they will set off a Constitutional 10th Amendment fight over whether there are limitations on the powers of the federal government to regulate health care and override the protections in these state laws.

Almost all these measures would make it illegal for the government at any level to require a citizen of the state to purchase health insurance. This would let Americans opt out of any federal "individual mandate," which makes people buy insurance or pay a tax, a la Massachusetts and both the House and Senate bills in Congress.

Second, the bills would guarantee the right of residents to pay directly for health services without incurring penalties or fines. This means citizens could go outside any government-run system to purchase private treatments from the doctor or hospital of their choice. Often, the federal Medicare program doesn't let doesn't let doctors charge extra for specialized care.

Virginia's legislature has already passed such a law and Republican Governor Bob McDonnell is about to sign it. The house in both Utah and Idaho passed a similar bill last week, and the Tennessee senate did so earlier this week by a vote of 26 to 1. Legislatures in Georgia, Kansas, Missouri, Nebraska, Oklahoma, South Dakota and Tennessee are expected to hold votes in coming weeks. Last June, Arizona's legislature authorized a November 2010 referendum vote on the Arizona Health Freedom Act. A similar ballot initiative failed by a slim margin (0.5%) in 2008 after health insurers spent millions to defeat it.

If Congress passes some version of health legislation, the federal law may pre-empt these state laws. But states do have the right to provide extra protections beyond what federal law guarantees. Many states, for example, have freedom of speech protections that go beyond federal law.

These bills aren't a "nullification" of a federal law. Clint Bolick of the Arizona-based Goldwater Institute notes: "If federal legislation is enacted, individuals would still have the option to participate in federal health insurance programs. This act simply protects a person's right not to participate."

The major constitutional issue is whether Uncle Sam has the right to supercede state laws, based on the Commerce Clause of the Constitution, and compel Americans to join a federal health system, as they must with Social Security and Medicare.

President Obama and Democrats continue to maintain their legislation is faltering because Americans don't understand the good it would do for the quality of their medical care. But the spectacle of "health-care freedom" legislation emerging in some 30 states suggests that voters and state lawmakers do understand that ObamaCare will alter the delivery of health care in ways that will limit choice and access.

Mr. Obama next week will hold his televised health-care summit, ostensibly to hear the ideas of Congressional Republicans. Maybe he should expand the format to include state legislators who are far out ahead of their Beltway colleagues.

Printed in The Wall Street Journal, page A12

http://online.wsj.com/article/SB10001424052748704804204575069821900574214.html?mod=WSJ_Opinion_AboveLEFTTop