by Clint Bolick, Goldwater Institute

Several states have added a Health Care Freedom Act to their constitutions, with several more states contemplating doing so through voter measures on the November 2012 ballot.  Following the U.S. Supreme Court’s decision inNFIB v. Sebelius, the adoption and deployment of the Health Care Freedom Act will be a vitally important tool in protecting individual autonomy.

The first state to adopt a Health Care Freedom Act was Arizona, whose voters approved it as an amendment to their Constitution in 2010.  Different versions contain varying language, but the core provision is the same: no governmental entity shall coerce, directly or indirectly, any individual to participate in a healthcare system, nor interfere with an individual’s freedom to directly purchase lawful medical services.

Obviously, the federal healthcare law violates the Health Care Freedom Act in two ways:  by directly mandating that individuals purchase prescribed health insurance, and by indirectly coercing them to do so by imposing tax penalties for refusing to follow the government’s edict.

The Health Care Freedom Act was not directly at issue in NFIB v. Sebelius, but a clash between this state constitutional protection and the federal healthcare law is inevitable.

The Supreme Court ruled that the federal healthcare law’s financial penalty on an individual’s refusal to participate in a prescribed health insurance system was within Congress’ constitutional taxing authority.  The Court did not decide whether such a tax could override a state’s authority under the Ninth and Tenth Amendments to exercise sovereignty over a traditional area of state regulation or to protect the healthcare autonomy of their citizens.  That issue is presented in the Goldwater Institute’s lawsuit, Coons v. Geithner, which is pending in federal district court in Phoenix.

The Health Care Freedom Act may be even more salient on another front: preventing the restriction of individual autonomy through state healthcare exchanges.  A majority of the Supreme Court ruled that Congress does not have constitutional authority to directly compel individuals to purchase prescribed health insurance (the “individual mandate”).  However, Chief Justice John Roberts observed that the federal government can influence state policy through financial incentives.  “These offers,” Roberts explained, “may well induce the States to adopt policies that the Federal Government itself could not impose.”

In addition to its taxing power, the obvious mechanism through which the federal government can bring about an individual mandate is state health insurance exchanges.  The federal law provides that either states may set up health insurance exchanges, or the federal government will create exchanges where states decline to do so.  Many states have accepted federal funds and are in the process of establishing state healthcare exchanges.  When they do so, the Secretary of Health and Human Services retains authority to regulate the state exchanges.  Through that power, or by the states’ own regulations, the exchanges may well directly or indirectly compel individuals to participate in prescribed healthcare systems, impose penalties for their failure to do so, and/or limit the ability of individuals to directly purchase lawful medical services.

Moreover, some states, such as Massachusetts, are moving on their own initiative to coerce participation in government health insurance schemes or in specified private systems.

The Health Care Freedom Act creates a constitutional barrier against efforts by states to limit healthcare choices—whether acting on their own accord or as minions of the federal government.  Citizens can effectively protect their autonomy by enacting and enforcing their rights under the Health Care Freedom Act.

Fortunately, the Health Care Freedom Act was drafted broadly to prohibit constraints on healthcare freedom imposed at any level of government.  Though the U.S. Supreme Court has blunted somewhat the federal government’s efforts to directly impose an individual mandate, efforts to impose a one-size-fits-all insurance regime will no doubt continue.  The Health Care Freedom Act provides the best possible protection for our precious individual rights.  Freedom advocates should continue to work in the states to establish this important constitutional protection, and to vigorously enforce it through legal action when the individual rights it protects are threatened.

In sum, we recommend the following:

  • Activists and policymakers in states that do not have a Health Care Freedom Act should work to have them added to their state constitutions.
  • Activists in states that have a Health Care Freedom Act in their state constitutions should carefully monitor state actions regulating healthcare and challenge any that violate rights protected by the Act.
  • Activists and policymakers should oppose the creation of state healthcare exchanges.

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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