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STATES CONSIDER ENACTMENT OF STATE-SPECIFIC HEALTH CARE FREEDOM ACTS TO PROTECT STATE RIGHTS UNDER THE TENTH AMENDMENT

by Debra Mullins

(May 12, 2010) — States are gearing up to battle the federal government’s takeover of health care by considering legislation, or state constitutional amendments, in an effort to shield state residents from the requirement to purchase federally-mandated individual health care insurance beginning in 2014 and any liability that may be incurred for failure to comply with the mandate. The American Legislative Exchange Council (ALEC), a non-profit, nonpartisan, membership association for conservative lawmakers, is the leading advocate to protect state rights concerning health care reform under the Tenth Amendment, and it has created model legislation that states can utilize. According to the ALEC press release issued on May 5, 2010, as many as 42 states have announced, introduced, or passed legislation that asserts a state’s right, at least in part, to exempt itself from the federal Patient Protection and Affordable Care Act (PPACA) signed into law by Mr. Obama on March 23, 2010.

A sampling of key actions taken thus far by several states:

Alabama: On January 14, 2010, the Alabama Senate introduced SB233, a proposed constitutional amendment subject to Alabama voter approval as a referendum. The amendment, if approved, would exempt Alabama residents from the requirement to purchase federally-mandated individual insurance and any subsequent penalties thereof under the PPACA. The Senate passed SB233 on April 1, 2010 and sent it to the House. The House failed to take up the bill prior to the Legislature’s adjournment on April 22, 2010.

Arizona: On June 22, 2009, the Arizona Legislature passed HCR 2014. The resolution is a legislative-initiated amendment to the Arizona Constitution in order to preserve health care freedom for its residents. The proposed amendment will be put before voters on the November 2, 2010 General Election Ballot. In 2008, a similar citizen-initiated constitutional amendment, Proposition 101, was placed on the ballot but was narrowly defeated. State of Arizona constitutional amendments require only a simple majority vote to be enacted.

Florida: On April 22, 2010, the Florida Legislature passed Joint Resolution 37. Similar to the Arizona resolution, the FL resolution is also a legislative-initiated amendment to the Florida Constitution, and will also be put before the voters on the November 2, 2010 General Election Ballot. Constitutional amendments per the Florida Constitution Article XI, Section 5(e) require at least 60% voter approval.

Georgia: On April 29, 2010, the Georgia Legislature approved SB411, titled the “Healthy Georgians Act of 2010.” The bill was amended to include SB317 and has since been sent to Republican Governor Sonny Perdue for signature. Georgia recently joined the multi-state health care reform lawsuit, and on March 25, 2010, Governor Perdue announced he would appoint a “special attorney general” to challenge the federal health care legislation.

Indiana: In January, the Indiana General Assembly recently introduced a constitutional amendment under Joint Resolution 0014. However, the resolution never made it out of the Senate Judiciary Committee before the General Assembly adjourned on March 14, 2010.

Louisiana: On March 29, 2010, Senator A.G. Crowe introduced SB26. The bill currently resides with the Senate Finance Committee.

Minnesota: MN bill HF0171 and its Senate companion bill SF0325 were introduced during the 2009 legislative session. Both bills propose that a constitutional amendment be put before voters on the November 2, 2010 General Election Ballot. Both bills were assigned to their respective Health and Human Services Committee, but to date, no action has been taken. The Legislature is scheduled to adjourn on May 17, 2010.

Missouri: On May 4, 2010, the Missouri Senate, with strong bipartisan support, passed a Senate-amended version of HB1764. On May 12, 2010, the House passed the measure, which will now be placed on the August ballot for a referendum.

Oklahoma: On May 4, 2010, the Oklahoma Legislature passed HJR 1054. The Freedom of Health Care Choice Act was co-authored by Senator Randy Brogdon (R-Owasso), Representative Mike Ritze (R-Broken Arrow), and Representative Mike Reynolds (R-Oklahoma City). In a May 4 report by the Tenth Amendment Center, Senator Brogdon made the following remarks:

This legislation does three things. It would prevent the federal government from forcing any Oklahomans to participate in any health care system. It would also prohibit the federal government from dictating how doctors choose to care for their patients. Finally, the measure authorizes the leaders of the Legislature to hire outside council to represent Oklahoma in a lawsuit to prevent Obamacare from being forced on our state.

The bill is now headed to Democrat Governor Brad Henry for his signature.

Tennessee: On February 17, 2010, the Tennessee Senate overwhelmingly approved SB3498 and sent it to the House. The House version, HB3433, merged with SB3498, and on April 28, 2010, the bill was placed “behind the budget” by the Budget Sub-Committee of House Finance, Ways, and Means Committee even though the financial impact of the bill is minimal. David Oatney, a writer for the Tennessee Statehouse Examiner, recently opined that in all reality it was a parliamentary maneuver to stall an up or down vote in the House before the General Assembly adjourns on May 17, 2010.

The House is considering HJR0745, a resolution which proposes a constitutional amendment that exempts Tennessee residents from compulsory participation in the purchase of individual health care insurance and the payment of fines as required by the PPACA. The resolution currently resides with the Budget Sub-Committee.

Tennessee: With solid majorities in both chambers, the General Assembly passed HB2681, which prohibits coverage for abortion services under any health care plan through an exchange required to be established by the state pursuant to federal health care reform. The bill was returned to the General Assembly by Democrat Governor Phil Bredesen without signature.

Utah: Utah became the third state behind Virginia and Idaho to pass a state-specific Health Care Freedom Act when Utah Governor Herbert signed HB67 into law on March 22, 2010. The Utah House and Senate overwhelmingly approved the bill.

Wyoming: SJ001 Health Freedom of Choice and HJ0012 Health Freedom of Choice – 2, were introduced during the Wyoming 2010 Legislative Session. Passage of either by both chambers would result in the placement of a proposed constitutional amendment on the November 2, 2010 General Election Ballot for a simple majority vote by the electorate. Both the Senate and House resolutions, while receiving a majority vote in favor, fell two votes short of the required two-thirds majority necessary to place the resolution before voters during the general election.

On March 24, 2010, the non-profit, non-partisan group Wyoming’s Future announced plans to organize a petition drive demanding the Wyoming Legislature reconvene in a Special 2010 Session and reconsider placing the proposed constitutional amendment on the November ballot.

The Tenth Amendment Center (TAC) is also currently tracking the legislative status of state-specific legislation and/or constitutional amendments regarding heath care choices.

Other states that have introduced Health Care Freedom Acts include:

Proposed legislation and/or constitutional amendments under consideration: Delaware (HB353), Iowa (HJR2007), Kentucky (HB307), Maryland (SB397), Michigan (HRJ-CC), New Jersey (ACR109/SCR81), New Mexico (SJR2/HJR5), New York (S7374), Ohio (SB244/SJR7/HJR3), Pennsylvania (HB2053), South Carolina (H4181/H4240/H4825), South Dakota (HJR1001/SB137), Washington (HB2669/SB6535), West Virginia (HJR103), and Wisconsin (SJR62).

Failed or stalled legislation and/or constitutional amendments: Colorado (HJR1009), Kansas (SJR1626), Mississippi (HCR0017/SCR562), North Dakota (HCR3010), and New Hampshire (HB1648).

As previously reported by The Post and Email, several of these states are also identified as Plaintiffs in the multi-state lawsuit challenging the PPACA filed in U.S. District Court for the Northern District of Florida by and through Florida AG Bill McCollum on March 23, 2010.

Update, May 16, 2010: The National Federation of Independent Businesses has joined the lawsuit filed in Florida on behalf of 20 states against the federal health care mandate.