State Lawmakers Rising Up Against Mandatory Health Insurance

State legislatures are getting fired up over health insurance.

In Virginia on Monday, the conservative Tea Party successfully spurred lawmakers in Richmond to endorse measures opposing any proposed federal government healthcare insurance mandates. On Tuesday, Kansas joined the fray, also opposing any insurance mandate. At least 31 states have enacted similar measures and several more are expected to follow.

"I see this as a political protest with positions being staked out, the battle lines being drawn," says Mark A. Hall, a professor of law and public health at Wake Forest University, regarding the states' actions. "The states are subject to federal law and that won't hold up in court," Hall says bluntly.

Health insurance leaders are watching the state lawmakers' decisions—and they are not happy about it.

"Experience in the states has shown that market reforms without a personal coverage requirement can have significant unintended consequences, including higher healthcare costs for current policyholders," says Robert Zirkelbach, spokesman for America's Health Insurance Plans, the insurance lobby.

Despite the fanfare, other legal experts agree with Hall that the states' decisions don't appear to have much legal clout. State representatives say otherwise.

Altogether, 35 states are expected to file amendments to their state constitutions or statutes rejecting health insurance mandates, according to the American Legislative Exchange Council, a nonprofit group that promotes limited government. It is coordinating the state effort.

Under the state anti-mandate plans, each state would assert a state-based right for people to pay medical bills from their own pocketbooks and prohibit penalties against those who refuse to carry health insurance. The movement began to pick up steam after the Massachusetts election gave Senate Republicans the filibuster power to halt healthcare reform legislation.

Besides Kansas and Virginia, the states that have filed amendments banning mandatory health insurance are: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Washington, West Virginia, and Wyoming.

"This is a battle that has been fought before and won before," says Christie Herrera, director of ALEC's Health and Human Services Task Force. "States may protect individual liberties to a greater extent than the U.S. Constitution allows. And the courts must balance the competing interests."

But constitutional law experts question the legal impact of the state measures because of what they term the overriding clout of the federal law.

The country has a long history of states fighting the federal government over the priority of laws, stretching to the early days of the Republic, according to Michael Dorf, a constitutional law professor at Cornell University. "Federal law prevails in this country," he says.

Referring to the rash of state legislation opposing insurance mandates, Dorf says, "The point is for state legislators to convey to their constituents how they feel, and in turn that message to their congressmen—to keep them from acting. … The audience is really the congressional delegation."