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As Supreme Court reviews health care law, Arizona’s position is clear

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State law vs. federal law

• Amendment to Arizona Constitution

Approved by voters November 2010

Article 27, Section 2

A. To preserve the freedom of Arizonans to provide for their health care:

1. A law or rule shall not compel, directly or indirectly, any person, employer or health care provider to participate in any health care system.

2. A person or employer may pay directly for lawful health care services and shall not be required to pay penalties or fines for paying directly for lawful health care services. A health care provider may accept direct payment for lawful health care services and shall not be required to pay penalties or fines for accepting direct payment from a person or employer for lawful health care services.

• U.S. Patient Protection and Affordable Care Act

Enacted March 2010

January 1, 2014 Deadlines:

1. Most individuals will be required to have minimum health care coverage or pay a tax to the federal government.

2. State Medicaid programs must be expanded to cover more low-income individuals that earn less than 133 percent of the national poverty level.

WASHINGTON – In case it didn’t make its position clear by joining 25 other states arguing against the health care reform law before the U.S. Supreme Court this week, Arizona has taken its opposition one step further.

It is the only state to adopt both a constitutional amendment and state law saying its residents cannot be forced to participate in a health care system, according to the American Legislative Exchange Council.

The laws would likely do little to protect state residents if the Patient Protection and Affordable Care Act is upheld by the Supreme Court this summer, but they could position the state for another legal challenge, said opponents of the federal law.

“It does act as a defense measure,” said Sean Riley, a legislative analyst for the American Legislative Exchange Council. “Once federal law conflicts with state law, I think it’s something they can challenge.”

Supporters of the federal law are not so sure, saying state “health care freedom” initiatives do little more than stake out a public stand on the issue.

“If Congress has the authority to regulate in that area, federal law trumps state law,” said MaryBeth Musumeci, senior health policy analyst for the Kaiser Family Foundation.

Arizona opponents were staking out their position even before the federal law – “Obamacare” to its critics – was passed in 2010.

Glendale orthopedic surgeon Eric Novack led a fight to pass the “Freedom of Choice in Health Care” constitutional amendment in 2008. It lost by 8,687 votes of more than 2.1 million cast, a losing margin of just over 0.4 percent.

“In 2008, it was a new idea and we had basically no money for a campaign,” said Novack, who has since become chairman of U.S. Health Freedom Coalition. “Clearly, the population was much more attuned to health care in 2010 than in 2008. It was not something that was a top-of-mind issue.”

By 2010, it was. The legislature approved a health-care choice law in April, just one month after the federal Affordable Care Act was passed, and state voters approved the constitutional amendment that fall.

“It doesn’t matter what your political affiliation is, people all over the country are overwhelmingly opposed to being forced to purchase health insurance,” Novack said.

Arizona was the first state to amend its constitution with a voter-approved proposition. To date, lawmakers in 44 states have proposed either a similar state law or constitutional amendment, said Riley. Thirteen states have enacted one or the other, but only Arizona has approved both, he said.

Also in 2010, Arizona joined a Florida-led suit against the federal law, which got the first of three days of hearings before the Supreme Court on Monday. The court is expected to rule this summer on the constitutionality of the Affordable Care Act and its requirements that states expand Medicaid coverage and that individuals purchase health insurance or face tax penalties.

The court must first decide whether the penalty is a tax under the Anti-Injunction Act. That would prohibit the court from ruling until the fee begins being collected in April 2015.

If the court decides it can rule now, it will have to rule whether the law’s individual health insurance mandate and state Medicaid coverage expansion are constitutional. If either provision is struck down, the court would then have to decide if those provisions can be severed from the rest of the law or if the entire act is void.

Even though it has not fully taken effect, the U.S. Department of Health and Human Services is claiming that the act has already expanded health coverage to 59,563 young adults in Arizona and helped 70,045 Medicare patients in the state with prescription drug costs.

The department said Arizona has also received $30.8 million in grants under the law to develop and implement an Affordable Insurance Exchange – a key provision under the act.

Whatever happens inside the court, what goes on outside is likely to continue to be colored by politics, Musumeci said. She pointed to a Kaiser poll that showed 66 percent of Democrats and just 12 percent of Republicans have a favorable view of the Affordable Care Act.

“It goes to show how very politicized this issue has become,” she said. “It’s not really so much people’s views of the health care system, it really comes down to fundamental issues about people’s views about federalism versus state rights.”

But the poll also reflected a bipartisan desire for some type of reform, with 72 percent of Democrats and 52 percent of Republicans wanting lawmakers to keep working for improved access to health care.

Novack agrees with the need for reform, but said states should keep working to pass health care freedom initiatives to protect residents’ “basic freedoms.”

“At the bare minimum, it prevents state legislatures from going even further to take the last threats of health care decision-making power from the (people),” he said. “It prevents the states from making things even worse.”