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Experts: Proposition would open health care reform to lawsuits

Arizona voters will be asked this November to approve a state law that contradicts federal health care reform and opens it up to legal challenges.

Proposition 106 was crafted in the Arizona Legislature in direct opposition to recent federal health care reform. If the proposition passes, no citizen could be compelled to participate in any specific health care plan, they could not be penalized for paying for a health care plan directly, and they would not be restricted from participating in any private plan.

“Those in favor say it is a statement against the federal government and that it would be successful in litigation,” said Kirstin Borns, a senior analyst for ASU’s Morrison Institute for Public Policy. “The opposition says federal law would trump state law.”

She said the real question among the opponents of the measure is whether this is a valuable use of voter effort and time.

“Is it appropriate to put this in the constitution when federal law could take over?” she said, describing the opposition’s stance.

If passed, the proposition could provide a legal backing in Arizona for lawsuits against federal health care reform, Borns said.

“In all likelihood, it could become a court matter,” she said, adding that those cases could make it all the way to the U.S. Supreme Court. “There are groups pursuing litigation, and it is possible that you could see litigation go that far.”

The Goldwater Institute, a local conservative government watchdog group, and Secure Arkansas, a conservative grassroots group, filed lawsuits against the federal law, along with more than a dozen state attorneys general.

James G. Hodge Jr., the ASU Lincoln Professor of Health Law and Ethics, said while the results of such lawsuits were not fully predictable, Proposition 106 would probably not survive a challenge in court.

“It’s likely to play out that these particular things are not going to survive at the level of federal courts,” Hodge said.

Because federal law trumps state law, it would have to be proven that the provisions in the federal health care law are unconstitutional in order for Proposition 106 to survive.

“All health law and constitutional scholars really come to the same basic conclusion,” Hodge said. “Federal health law is constitutionally sound and will survive litigation.”

He said the federal government had fairly broad power in regulating the health care market.

“Based on every measure of existing constitutional law that we have to examine health policy, the state measures in response to [the federal law] will not succeed,” Hodge said.

Rep. Nancy Barto, R-Phoenix, sponsored the proposition in the Legislature and said the federal law was unconstitutional and needed to be challenged.

“It’s incredibly important that Arizona citizens have the opportunity to protect their health care freedom,” Barto said. “This is clearly a case where Congress has overstepped their bounds.”

She said Congress could not force every American to purchase something.

“Once they tell you that, what can’t they tell you that you have to purchase?” she said.

If challenges to the proposition reached the Supreme Court, it would hopefully succeed, she said.

“The current make-up of the U.S. Supreme Court is the most federalist court in decades,” Barto said. “They’re very pro-states’ rights.”

Finance senior Alexander Falkenstein is the director of Students for Liberty, a campus group in favor of less government regulation. He said the proposition would not be a waste of resources, but would show Arizona’s opinion of the new national health care law and at least begin a dialogue between the federal government and Arizonans.

“As a state and as citizens, we need to show our ideas and our opinions on this bill that was passed,” Falkenstein said. “It’s never a waste of resources to challenge something you feel passionate about, especially if Arizonans vote in favor of 106.”

Rep. Kyrsten Sinema, D-Phoenix, voted against the measure, and said the proposition was a waste of state tax dollars because it would attempt to do what about 25 other lawsuits around the country were already doing.

“They’re doing an initiative for the purpose of starting litigation,” Sinema said. “It’s going to cost the state money from having to participate in a lawsuit, which the state can’t afford.”

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