36 States Aim to Preempt Federal Health Care Plan

Talk about your preemptive strike.

The success of national health care reform legislation is still an uncertainty, but some states are already taking measures to keep federal hands off their citizens.Thursday, Virginia became the first state to enact a law exempting its residents from any health insurance mandates. It's one of 36 states where lawmakers are trying to head off potential federal legislation.

While Virginia enacted a statute, 25 other states are considering constitutional changes, according to the National Conference of State Legislatures. Virtually all the proposals object to mandates requiring individuals or businesses to buy health insurance.

"That is a widespread, common theme," said Richard Cauchi, program director for the NCSL health program. "The real legal issue is the requirement that every person buy health insurance."

In Arizona this November, voters will consider a constitutional amendment banning any requirement for individuals or employers to have or provide for heath care. This spring, the legislature is also consider a statute to allow the state to decline any public health care plan offered by the federal government.

But not all the actions being considered apply simply to federal law. Some of the constitutional provisions would also prohibit future state lawmakers from enacting any sorts of health insurance mandates or enacting any sort of single-payer system. Some measures don't even refer to the federal government, Cauchi said.

But most are clearly aimed at potential mandates that individuals carry health insurance, he said. That could set the stage for legal wrangling between states and feds if a health care package with a mandate becomes law.

"There probably are some phrases or sections that probably are in conflict with some future law," Cauchi said.

Republicans control legislatures in Virginia, Arizona and other states where such moves appear to have the most traction, such as Idaho, Utah, Georgia and Florida. In Florida, GOP Attorney General (and gubernatorial candidate) Bill McCollum is threatening to sue the federal government if an individual mandate is included in any reform legislation.

Timothy Jost, a law professor at Washington and Lee University School of Law in Virginia, questioned whether the U.S. Supreme Court would uphold laws such as Virginia's in a battle between state and federal rights in an article in the New England Journal of Medicine last month. He cited rulings on desegregation in the 1950s and 1960s as well as today's battles over medical marijuana laws in concluding that state attempts to preempt health care are more for show than for action.

"These resistance efforts are not about law -- they are about politics," Jost wrote.

And Cauchi said the politics may be tough for several of the measures being considered by the states. Wyoming's GOP-controlled legislature rejected similar efforts in 2009 and this year. Last year, lawmakers in Minnesota, Michigan, Indiana, New Mexico, North Dakota and West Virginia rejected such laws.

Most states require a two-thirds vote by legislatures to put constitutional issues on the ballot. In Iowa, for instance, that two-thirds vote must occur in two consecutive legislative sessions.

"For those that are trying to amend the constitution, it's a multiple-step challenge," Cauchi said.