Health Care Freedom Results

Measures in four states—Alabama, Florida, Montana and Wyoming—were on the ballot last night relating to ALEC’s model Freedom of Choice in Health Care Act. Preliminary results show the measures passed as constitutional amendments in Alabama (Amendment 6) and Wyoming (Amendment A), and as a referendum in Montana (LR 122).  The Florida measure failed.

Meanwhile, the issue of the Supremacy Clause, i.e. federal law trumping conflicting state law, has led some to wrongly conclude that any and all issues related to these measures are moot, contending that these and existing measures are merely symbolic objections to the federal health law and its attendant individual mandate. There are significant problems with this reasoning.

First, the Supreme Court case in June didn’t address any potential conflict of laws. Outstanding lawsuits are addressing those issues, and additional litigation is expected moving forward as the individual mandate takes effect in 2014.  As recently as late September, attorneys defending the federal health law made the argument that at least in one case there was no conflict depending on how the language was read.

The second problem is that looking at the federal individual mandate is only one aspect. Regardless of any Supremacy Clause issues, many of these measures would prevent a single-payer system from taking hold at the state level—like that being pursued in Vermont, and would also prevent a state level individual mandate if the federal health law is ultimately repealed.

Finally, several of these measures also include language preventing individuals from being compelled, directly or indirectly, to buy insurance. This language carries serious implications for state established health exchanges that trigger penalties for not buying insurance, assuredly a source of major debate moving forward.

On a related note, Missouri’s Proposition E also passed, blocking the governor from establishing an exchange via executive order.