As legal challenges to the 2010 federal healthcare law move closer to the U.S. Supreme Court, Ohio voters will weigh in on the Patient Protection and Affordable Care Act (ACA) at the Nov. 8 election.
While Ohio's Issue 3 doesn't specifically mention the ACA, the amendment to the state constitution seeks to exempt Ohioans from the federal requirement to have minimum healthcare insurance or face a fine. This so-called "individual mandate" in the ACA goes into effect in 2014.
Tea Party members and other supporters of Issue 3 say it will preserve the freedom of Ohioans to choose their healthcare, keep healthcare decisions between doctors and patients, and preempt other costly government interventions.
Opponents say the amendment would be moot if the Supreme Court upholds the ACA because federal law trumps state law. But the broadly written measure could have other disastrous, perhaps unintended consequences on protections Ohioans rely on, they say.
In the last two years, 17 states have enacted binding legislation opposing elements of federal healthcare reform, according to the National Conference of State Legislatures. Ballot questions impacting the ACA are pending in five other states in addition to Ohio.
Issue 3 states: "In Ohio, no law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system." Furthermore, there can be no prohibitions or penalties on the purchase or sale of health insurance, the proposed amendment states.
"Somebody is trying to make a public relations point," said Joseph White, chairman of the Case Western Reserve University department of political science. "The law will be whatever the Supreme Court says it is."
The U.S. Constitution in Article VI says that federal law has supremacy over state law. "We had a four-year war that settled this in 1865," said White. Issue 3 "is posturing, trying to rally the troops and turn out voters. If you get the votes, you can use that as an argument for repealing the federal (healthcare) law later or somehow hoping to affect the U.S. Supreme Court if a swing justice sees that states have passed this."
In an analysis on the website of the nonpartisan Health Policy Institute of Ohio, Maurice Thompson, executive director of the 1851 Center for Constitutional Law in Columbus, who drafted the language of Issue 3, said the amendment "further restrains healthcare costs, permits medical innovation, maintains privacy, and preserves the supremacy of the doctor-patient relationship."
Massachusetts, the only state with mandated health-insurance coverage, "requires the insurability of over 40 mandated products and services," Thompson said. Massachusetts "leads the nation in the increased cost of health care spending and health care premiums since implementing a mandate in 2006."
Repealing the federal healthcare bill and leaving things as they are is not a viable option, said White, an expert on healthcare finance and cost control. "The system is falling apart. Coverage gets weaker and weaker and more expensive. Claims that the Obama legislation will have horrible effects on the system are horribly overstated.
"The individual mandate isn't going to prevent innovation," he added. "There will be more money to pay for innovation if more people have insurance."
Issue 3 contains a clause stating it would not apply to laws or rules in effect as of March 19, 2010, prior to the passage of the ACA. Thus, supporters say it would not affect any health-insurance coverage in effect before that date, such as Medicare, Medicaid or Social Security disability.
However, the measure's language is "so unclear and so strange" it will impact a number of laws and regulations passed after March 19, 2010, said Maxwell Mehlman, a professor of law and bioethics at CWRU.
For example, any law or regulation that requires reporting of something, such as new cases of an infectious disease that public-health officials want to monitor, would be prohibited by Issue 3, said Mehlman, director of the CWRU Law-Medicine Center and an expert on rights of patients and healthcare reform.
Similarly, requiring new immunizations would be prohibited, he said. Legislation passed after 2010 that goes after "pill mills," the illicit drug industry, requires reporting and would be voided by Issue 3, Mehlman said. Similarly, new anti-abortion laws could be nullified.
The amendment could jeopardize a judicial order to parents that they provide health insurance for children in custody cases or any kind of judicial order under certain interpretations, Mehlman said.
"Because the language is so poorly drafted" and so broadly written, he said, "this amendment could threaten all kinds of important programs that are non-controversial, if not necessary and desirable, even if you don't like the health-insurance mandate." For instance, any changes in workmen's compensation could be prevented by this amendment.
Thompson, the amendment's author, has said that supporters intended the law to have implications beyond the federal healthcare law. He did not respond to a CJN request for comment on Issue 3.
"If the Supreme Court upholds the federal healthcare law, then this law cannot affect it," Mehlman said. "It the healthcare law is declared unconstitutional, there's no need for the state amendment. It will not have any effect on ‘Obamacare.'"
How to vote early
Voting by mail and early voting at the Cuyahoga County Board of Elections has begun for the Nov. 8 general election. Ballot applications will not be automatically mailed to every registered voter this year. To download an application requesting a ballot, go to www.boe.cuyahoga county.us or call 216-443-3298. Ballot applications are also available at public libraries.