Voters in Arizona, Colorado and Oklahoma will have the chance Tuesday to repudiate the new health care law’s keystone provision, one that requires almost everyone to have health insurance or face a tax penalty beginning in 2014.
Ballots in the three states include proposed amendments to the states' constitutions that would prohibit the enforcement of the individual mandate and other provisions of the law. They echo a measure that Missouri voters approved by more than 70 percent in August. Legislatures in several other states, including Georgia, Idaho, Louisiana and Virginia, have also passed state laws with similar language.
But the ballot initiatives have set off a fierce debate: If they succeed, will they have any effect?
Critics of the referenda say they’re nothing more than a political gesture, misleading voters to believe that amending their state constitutions would allow them to opt out of the health care law. Given that the Supreme Court will likely have the final say on the constitutionality of the law before 2014, the public's vote wouldn't impact the national law, they say.
Some policy analysts agree.
"To me it's more of a polling statement," said Elizabeth McGlynn, an associate director at the RAND Corp., a nonprofit research organization based in California that has no position on the amendments. "It's not clear to me in this case that the federal law wouldn’t override state mandate … that will be something the courts decide. … It's not really clear to me what that does at the state levels.”
Proponents argue that the amendments have a strategic function beyond the scope of individual states.
"As more and more states pass these kinds of amendments … it's going to embolden legislative action to repeal or defund legislative provisions" of the federal health law, said Robert Alt, deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation, a conservative think tank in Washington.
'New Avenues Of Litigation'
Having the new amendments in place would give states greater standing in the current litigation brought by 20 states against the federal law, says Christie Herrera, a director at the American Legislative Exchange Council (ALEC), which has provided model legislation used by several states.
If the Supreme Court were to uphold the individual mandate in that case, a state constitutional amendment would "open new avenues of litigation," she said. States could also file suit to argue that the health law violates their 10th Amendment rights to keep powers not otherwise delegated to the federal government by the U.S. Constitution.
Opponents of the ballot amendments say the measures could complicate health care issues within the states.
Dr. Michael Pramenko, president of the Colorado Medical Society, which opposes the ballot initiative, said the amendment could affect any state efforts to set up a program to expand insurance coverage. "It would tie our hands at the state level,” he said, adding that the amendment would prevent the state from setting up its own version of the individual mandate, independent of the federal government, in the future.
The proposed amendments in Arizona, and Oklahoma are nearly identical, while the Colorado amendment differs in subtle but significant ways. The measures are centered on a few key provisions: that no individual can be forced to participate in a public or private health plan; that a person's ability to make or receive direct payments for medical services cannot be restricted; and that no one should be forced to pay a penalty for failing to enroll in a health plan.
The Colorado amendment makes clear that it applies only to state efforts to impose such requirements.
The amendments do not deal with some of the other preparations for the health law that are falling to states, such as the health insurance exchanges and the expansion of Medicaid that will begin in 2014.
"They're operating on two bandwidths," trying to oppose the federal law while also trying to implement it, said McGlynn. "Most of what states are going to have to do, they don't get to avoid through these amendments."
Colorado's situation is unique because its amendment was brought to the ballot through citizen initiative, and doesn't follow ALEC model legislation as closely. Its language allows for a much broader interpretation of the measure than other states have allowed for, argued Alec Harris, a policy analyst at the Colorado Center on Law and Policy, which opposes the amendment.
“It's getting billed as -- and people seem to view it as -- a referendum on federal health reform,” Harris said. “This has no ability to do anything about federal health reform.”
Instead, Harris says, the language of the bill, which prohibits "the state of Colorado, its departments and agencies" from requiring that a person participate in a health plan, could interfere with the state's auto-enrollment of Medicaid and Child Health Plan Plus beneficiaries.
"Quite a bit of this stuff doesn’t go away even if the Affordable Care Act is ruled … completely constitutional," Harris said. "It's the unintended consequences that we're worried about."
The president of the Independence Institute, which drafted the amendment, disagreed. “It doesn't stop the government from offering all sorts of alternatives and plans," said Jon Caldara. "… Really it means that the state legislature can't mandate that people should buy something they don't want to by without getting voter approval.”