States have an extensive and complicated shared power relationship with the federal government in regulating various aspects of the health insurance market and in enacting health reforms.

As part of state-based responses to federal health reform legislation, individual members of at least 36 state legislatures are using the legislative process to seek to limit, alter or oppose selected state or federal actions, including single-payer provisions and mandates that would require purchase of insurance. In general the measures seek to make or keep health insurance optional, and allow people to purchase any type of coverage they may choose. The individual state language varies.

Constitutional amendments: In 25 of the states, the proposals include a proposed constitutional amendment by ballot question. In a majority of these states, their constitution includes an additional “hurdle” for passage – requiring either a “supermajority of 60% or 67% for passage, or requiring two affirmative votes in two seprate years, such as 2010 and 2011.

Changing state law: In 12 states proposed bills would amend state law, not the state constitution. These require a simple majority vote and action bythe governor; they also can be reamended or repealed by a future state law. So far in 2010,

* Virginia became the first in the nation to enact a new statute section titled, ” Health insurance coverage not required.” It became law on March 4, 2010; see SB 283 and related bills below.New item
* Other bills have advanced in Idaho and Utah.

Unfunded mandates: New Hampshire has a bill that would prohibit any Medicaid expansion unless paid for by the federal government or approved by the NH Legislature.

Based on actions initially in Arizona, several states propose or may propose state constitutional amendments, using language such as:

“To preserve the freedom of all residents of the state to provide for their own health care… A law or rule shall not compel, directly or indirectly, any person, employer or health care provider to participate in any health care system … 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…”
[see full text in Appendix 1]

Arizona voters are scheduled to cast ballots on this constitutional amendment in November 2010. If adopted by voters, it could block future state health reforms and at least raise questions about some features within future federal health reforms.

According to The New York Times, “Conservatives and libertarians, mostly, have been advancing the theory lately that the individual mandate, in which the government would compel everyone to buy insurance or pay a penalty, is unconstitutional.” (NY Times, 9/26/09) A current Massachusetts law, passed in 2006, includes an individual mandate, although it was written to be consistent with both state and federal constitutions. To the extent that congressional proposals provide for state opt-out or opt-in features, these proposals to restrict “reform” could well become more widely discussed.

The Tenth Amendment to the U.S. Constitution reads:

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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