Repealing Health Care Reform: Where States' Efforts Stand

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Thursday was a momentous day for supporters of President Obama's health care reform law. Several of the bill's key provisions took effect, meaning that insurers will no longer be allowed to turn away children with pre-existing conditions, impose lifetime limits on benefits, or drop customers after finding technical errors on their applications. Insurers will also be required to allow young adults to stay on their parents' plans up to the age of 26, and to cover a host of preventative procedures without charging co-payments. 

For many sick Americans, and for many Democratic lawmakers who had fought for the bill, these changes felt like victories. But for the many outspoken opponents of the health care reform package, they prompted a renewed commitment to repealing the law.

In courtrooms and on ballots across the country, lawyers and advocates are finding ways to fight health care reform. These efforts are manifold, but three states have undertaken particularly high-profile missions. Below, an update on where these missions stand and how likely they are to succeed.

Virginia: In August, a federal judge allowed a challenge to the health care law from Virginia's attorney general, Ken Cuccinelli, to move forward. The federal government had requested that Judge Henry E. Hudson dismiss Cuccinelli's case, which took issue with the individual mandate requiring all Americans to purchase health insurance. The "commerce clause" of the Constitution allows the federal government to regulate interstate commerce, but insurance has not traditionally been viewed as "commerce" and has thus been left to the states.

Hudson's ruling hinged on the federal government's attempt to regulate an individual's choice not to engage in commerce -- in this case, not to purchase health insurance -- which he found a novel issue for the courts and thus deserving of review.  

Plenty of other suits have been filed arguing that the commerce clause does not justify the individual mandate, but Cuccinelli's has another, more straightforward charge: that the mandate violates a state law that Virginians not be forced to buy health insurance (Virginia's legislature passed this law as defense just weeks before Congress passed health care reform). Five other states have passed similar laws, and 26 have rejected them. 

On October 18, Judge Hudson will hold a hearing before ruling on the case.

Florida: Bill McCollum, Florida's attorney general, has teamed up with the AG's of 19 different states to challenge the individual mandate. On September 14, Federal District Court Judge Roger Vinson hinted that he was planning to move the case forward despite the federal government's request that he dismiss it. He will issue his formal decision by October 14. If he decides to greenlight it, arguments would begin December 16.

According to the New York Times, this case is deemed the most likely to reach the Supreme Court, thanks to the high-profile nature of its mostly Republican AG plaintiffs.

Missouri: In early August, 71 percent of Missouri voters passed a ballot initiative that would amend state laws to deny the federal government the authority to penalize those who opt out of the individual mandate. The law is expected to end up in court -- which, for some advocates of the initiative, was its intended endpoint. But this case would be flimsier than the Florida and Virginia suits because the Constitution's "supremacy clause" clearly indicates that federal law trumps state law when the two conflict.

During a charged election season, however, the proposition provided considerable ammunition for Republicans who wanted to demonstrate widespread revolt against Obama's health care policies.

Other states have put similar initiatives on their November ballots. Colorado, Arizona, and Oklahoma voters will soon weigh in on whether to pass constitutional amendments forbidding the federal government from forcing them to purchase health insurance. These amendments would, like the Missouri initiative, presumably be vulnerable to the supremacy clause. Florida attempted to include a similar initiative on its ballot, but the state Supreme Court threw it out because the proposed summary was misleading.

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Nicole Allan is a former senior editor at The Atlantic.

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