Opinion: Two more states vote (symbolically) to nullify healthcare reform


This article was originally on a blog post platform and may be missing photos, graphics or links. See About archive blog posts.

Voters in Arizona and Oklahoma amended their state constitutions Tuesday with ‘healthcare freedom’ measures designed to block the new federal mandate on individuals and some employers to buy health insurance. Voters in Colorado went the other way, defeating a similar initiative. The measures purport to give state residents the right not to participate in any healthcare system without penalty and to have access to any legal medical services they can afford.

But the initiatives aren’t likely to have any effect on the federal healthcare law. As the Oklahoma State Election Board put it:


Nor could the measure affect or negate all federal laws or rules. The United States Constitution has a Supremacy Clause. That clause makes federal law the supreme law of the land. Under that clause Congress has the power to preempt state law. When Congress intends to preempt state law, federal law controls. When Congress intends it, constitutionally enacted federal law would preempt some or all of the proposed measure.

The measures’ provision on privately funded healthcare also springs from a faulty premise: that the federal government plans to ban specific medical procedures in its zeal to cut costs. Yes, the Patient Protection and Affordable Care Act does try to slow the growth of healthcare spending in part by directing federal Medicare and Medicaid dollars toward more effective treatments. But any effect on private spending would be indirect -- for example, if Medicare stopped paying for a cancer drug shown to be less effective than an alternative, private insurers might follow suit, possibly leading its manufacturer to stop making the drug. But if there’s any group for which the drug remains effective, it’s a good bet that the manufacturer will continue promoting it aggressively to that niche.

Here are the unofficial results from Tuesday’s voting. Oklahoma voters approved their state’s measure, State Question 756, by a margin of 65% to 35% -- not quite the 70% margin by which Missouri voters approved their ‘healthcare freedom’ initiative in August but still resounding. Arizona voters, who defeated the proposal in 2008, approved this year’s version (Proposition 106) by a margin of 55% to 45%. And in Colorado, the initiative (known as Amendment 63) was rejected by a margin of 53% to 47%. Either voters in Colorado like the new healthcare law or they don’t have much energy for empty gestures at the ballot box.

Eschewing initiatives, several state legislatures have tried to nullify the healthcare reform law by statute. These measures suffer from the same preemption problem as the ballot measures.

That’s not to say the individual mandate is unstoppable. Numerous state attorneys general have sued to have it overturned on constitutional grounds. And the new Republican majority in the House will try to repeal it and other controversial provisions of the healthcare reform law, although those efforts face an uphill battle in the Senate and a certain presidential veto.

So before the mandate takes effect in 2014, the U.S. Supreme Court is likely to decide whether Congress has the power to impose it. And even if the mandate passes muster with the justices, voters will still have the chance to toss out its defender in the White House in 2012.


-- Jon Healey