Health Care

Christie Herrera | January 1, 2010

Opting Out of ObamaCare

Christie Herrera

It's been several weeks since Senate Majority Leader Harry Reid floated the idea that states could "opt out" of the government-run health insurance plan. But it's been nearly a year since a growing coalition of lawmakers in 24 states began crafting an opt-out strategy of its own.

The differences are clear. Mr. Reid's opt-out provision is no opt-out at all. It began as a last-ditch effort to revive the Medicare-modeled public plan and appease advocates of single-payer health care. And it shows.

The Senate's opt-out clause is just a detour on the road to socialized medicine. It's unlikely that state legislatures will have the political fortitude to reject the public plan. Ones that do will still be forced to open Mr. Reid's door No. 2 to find an unprecedented requirement to purchase health coverage, an economy-crippling employer mandate, and massive tax hikes to pay for Medicaid expansion and a host of new government programs.

But while Mr. Reid's illusory scheme has been in the headlines, behind the scenes state legislators are pushing a real opt-out plan that would preserve the freedom of individuals to make their own health care choices.

Last January, the American Legislative Exchange Council, a bipartisan group of conservative lawmakers, drafted the Freedom of Choice in Health Care Act. The state constitutional amendment-modeled after the narrowly defeated Proposition 101 on the 2008 Arizona ballot-would not only protect patients' rights but may also provide a mechanism for states to opt out of a federal requirement to purchase health insurance.

The Freedom of Choice in Health Care Act accomplishes two goals. First, it preserves the right of patients to pay directly for medical care, which is illegal in some single-payer countries like Canada.

Single-payer horror stories tell us that when the government pays for medical care, bureaucrats make decisions based on the bottom line-resulting in waiting lists and rationing. When patients control health care dollars, they retain the right to decide which doctor to see and what medical treatments to get.

Relevant to the federal debate, however, is the Freedom of Choice in Health Care Act's second provision-that individuals can't be fined for failing to purchase government-defined insurance.

This strikes at the heart of the individual mandate-a provision in both the House and Senate bills-that the Cato Institute estimates would force 100 million Americans to lose their existing coverage.

In Massachusetts, a state that has had an individual mandate since 2006, more than 200,000 residents remain uninsured, and health insurance premiums for those forced to purchase coverage cost nearly $4,000 more than the national average.

Fourteen states have already filed the Freedom of Choice in Health Care Act-Arizona's measure will face voters there on the 2010 ballot-and an additional 11 states have already announced their intentions to do so. In Oklahoma the legislation is being filed by state Reps. Mike Ritze and Mike Reynolds and state Sen. Randy Brogdon.

On its face, the constitutional amendment would strike down any state law designed to prohibit direct payment for medical care or one that would require an individual mandate. These are real threats at the state level-13 states introduced single-payer bills during the 2009 legislative session, and an individual mandate was enacted to thunderous bipartisan applause in Massachusetts.

Now states are facing a looming health care overhaul from Congress that would, among other unsavory elements, require an individual to purchase government-defined insurance. And in the event of federal passage, states may be able to use the Freedom of Choice in Health Care Act as a legitimate way to opt out of a federal individual mandate.

It's a legal battle that has been fought before and won before. Clint Bolick, legal adviser to the Arizona effort, maintains that our federal system empowers states to protect the liberty of their people and the federal government has limited power to violate those protections. Recent Supreme Court cases have not only upheld this conclusion but also have permitted states to opt out of certain provisions of federal law.

State lawmakers aren't waiting around for Mr. Reid to present them with false choices that saddle them with higher taxes, bloated government programs, and worsening patient care. They know the time for state constitutional protection is now.

Christie Herrera (M.S. in political science, Florida State University) is director of the Health and Human Services Task Force at the American Legislative Exchange Council. For more information, visit

Christie Herrera

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