Goldwater Institute Files Action Against Health “Reform” Law

In Arizona, it’s “game on,” with the Goldwater Institute filing a federal lawsuit, seeking to strike down Obamacare as “a fundamental attack on individual freedom and the rights guaranteed to all Americans by the U.S. Constitution.”

According to a press release, the suit “argues the federal health care bill exceeds the powers of Congress, violates individual rights, interferes with the authority of states, and violates the separation of powers by setting up a new bureaucracy without meaningful congressional oversight or judicial review.”

Add this action to other private-party lawsuits, the 21-state lawsuit spearheaded by Florida, the suit brought by Virginia, and various state laws, referenda, and constitutional amendments promoting the Freedom of Choice in Health Care Act, and popular and to a lesser extent, elite opposition to increased federal control over health care isn’t going away anytime son.

Will Obamacare meet David’s Hammer?

A think tank that is also a “do tank,” is planning to file suit in opposition to Obamacare. From the East Valley Tribune, “The Goldwater Institute has announced that it will file a lawsuit Thursday to block the federal health care reform package that Congress approved earlier this year.”

The attorney representing the institute and several individuals and officials, is Clint Bolick. Bolick is well known as a co-founder of the Institute for Justice and school-choice litigator. He has also written David’s Hammer, in which he calls for an “activist” judiciary, though not the kind that you’re used to hearing about.

The new federal law calls out for just the sort of judicial branch that Bolick wrote about.

Punch, Counterpunch, in Legal Battle

States are fighting back against the federal effort to squash their challenge to ObamaCare.

From the East Valley Tribune, of Arizona: “Arizona and other states are striking back at efforts by the Obama administration to kill their legal challenge to the new federal health care plan.”

There are several aspects to the lawsuits, which the Tribune article points out, including the policy prerogatives of states, the responsibilities of states as employers, and mandates concerning their participation in Medicaid.

Medical-Tort Law: Ranking the States

How much do a state’s laws governing medical malpractice and other torts relevant to health care affect the availability of care?  Plenty!

Lawrence J. McQuillan’s & Hovannes Abramyan’s 2010 edition of the U.S. Tort Liability Index, which has a number of measurements included in the U.S. Index of Health Ownership, ranks states according to 42 variables.

Eight of the measurements in the U.S. Tort Liability Index are relevant to the U.S Index of Health Ownership: One output and seven inputs. The previous edition of the U.S Index of Health Ownership included six measurements of medical tort, but McQuillan & Abramyan have discovered more variables for their 2010 edition of the Tort Liability Index, allowing more detailed measurement.

As a partial update of the U.S. Index of Health Ownership, this brief analysis calculates a medical-tort index from a simple average of the eight relevant variables.  Mississippi, Nevada, Michigan, Colorado, and Louisiana lead the pack; while Vermont, Rhode Island, Kentucky, Pennsylvania, and Iowa bring up the rear. Even the leaders, however, lag in some measurements.

Mississippi, for example, leads on procedural rules: Pre-trial screening or arbitration and conditions on the use of expert witnesses. However, it does not limit lawyers’ ability to abuse their privilege by limiting their share of awards. Colorado and Louisiana also fail to impose limits. Unfortunately, the laggards do not show a similar pattern: The bottom five states perform poorly in all eight measurements.

Reducing the burden of medical tort is critical to increasing Americans’ health ownership and reducing medical costs that curtail our access to care. Some progress is evident, but states aiming to improve their medical-tort laws still have a long way to go.

Arizona Challenges ObamaCare

Late last week, Gov. Jan Brewer announced that Arizona would add its name to the list of states that are challenging ObamaCare.

One element of the suit is focused on something that’s already well known, the individual mandate. Another focuses on the crack cocaine of government budgeting, the Medicaid program.

The other [provision] increases the share of each state’s Medicaid costs it will pay — but not for nearly a decade. But to qualify, states are forbidden from scaling back their existing health programs.

That penalty is even more significant: Any state that reduces coverage would lose all future federal Medicaid dollars. That is crucial as Arizona now gets about two dollars from Washington for every dollar it now spends on the Arizona Health Care Cost Containment System, this state’s Medicaid program.

Goddard, the presumed Democratic nominee for governor — and Brewer’s foe if she survives the Republican primary — rejected arguments that amounts to an unconstitutional mandate on sovereign states. He said it is simply a condition for getting federal cash: States that want money from Washington have to live by the conditions attached.

But gubernatorial press aide Paul Senseman said that ignores the reality that states have become fiscally dependent on Medicaid dollars.

“They know full well that they could never turn it down,” he said. “And that is the design.”

Voters will also decide the fate of the Arizona Health Care Freedom Act, which would be added to the state constitution.

More States Refuse “Free” Money for High-risk Pools

If you’re the governor of a state, Congress is asking you, “do you feel lucky?” That is, do you take federal funds and set up a new high-risk pool for a few thousand people, and risk having demand outstrip the federal subsidy, or do you tell your electorate, “sorry, I’m not going to help you; go talk to the feds?” I wrote about 8 states this the other day.

Now Arizona has become one of 19 states (by one tally) that have rejected federal funds. Gov. Jan Brewer told Kathleen Seblius, head of the U.S. Department of Health and Human Services, ”In light of Arizona’s existing fiscal challenges, I cannot commit the state to a program without confidence that there is funding available to sustain it.”

Idaho will also opt out. Gov. Butch Otter said, “Put simply, Idaho cannot afford to subsidize a second high-risk pool program, especially during these difficult economic times.” According to one account, “Otter said estimates prepared by the Idaho Department of Insurance indicate that the $24 million allocated for Idaho would provide only a month or two of coverage for the approximately 33,400 people who may qualify – even though it’s a four-year program.” He also cited lack of staff to administer a second pool, and the fact that the new pool discriminates against people who have already entered the state pool.

Wyoming Gov. Dave Freudenthal rejected the new federal pool, too, citing its financial uncertainty. He added, “In the end, either the state or the federal government are going to contract with some kind of a nonprofit insurer. So why do I need 12 more people in the Department of Health to oversee a contract that the feds are going to be overseeing anyway?” The governor, a Democrat, has rejected calls to have the state join the multistate lawsuit against the Obama Administration.

According to the Idaho Statesman, the following states have decided to not roll the dice on incurring a partly-funded mandate: Alabama, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Louisiana, Minnesota, Mississippi, Nebraska, Nevada, North Dakota, South Carolina, Tennessee, Texas, Virginia and Wyoming.

Arizona to Join Multi-state Lawsuit

Arizona will be joining the tide of attorneys general pursuing a legal challenge to ObamaCare, according to the Arizona Capitol Times. The cost to the state is estimated to be $5,000. In state government budgets, that’s a rounding error, but it brings out a hostile comment from a reader, who says, “Why waste more money and time and participate in what legal experts have determined to be a losing cause?”

Some legal experts have said that. Others have said otherwise. But even if all legal experts have weighed in, the ones that ultimately count are the nine members of the U.S. Supreme Court. Think the matter is an open and shut case? Well, remember the sports analogy: “That’s why they play the game.”

Arizona Governor: Let’s Go Ahead with Lawsuit

Even if a state’s governor and legislature wants to sue the federal government over ObamaCare, the attorney general can stand in the way. In Arizona, the attorney general is opposed to such a measure. But the state may go ahead with a suit anyway. As Flagstaff Daily Sun, “Arizona Gov. Jan Brewer has signed a bill giving her the authority to skirt Attorney General Terry Goddard and file a lawsuit challenging recent federal health care legislation.”

Trouble Ahead for AZ Medicaid?

Last week Arizona became the first state in the nation to eliminate its Children’s Health Program (CHP), called KidsCare, setting up a showdown with the federal government. The health care legislation being signed into law by President Obama today mandates that to receive federal Medicaid funding states could not reduce their eligibility for these programs. Eliminating the entire KidsCare program flies in the face of this mandate and could lead to the state losing its entire federal share of Medicaid funding.

While the state has yet to hear from the federal government on this issue, it is likely to do so at some point. The legal wrangling over this federal maintenance of effort requirement for Medicaid may set up another avenue for legal challenges against this legislation.

States Past Spending Coming Back to Haunt Them

Earlier in the decade, most states’ income exceeded their expenditures and so the states had several options: give it back to the taxpayers, put it into a “rainy day” fund, or spend it. As we know, most of the states decided to spend it. Now that we are in the midst of a significant budget crisis for most states, those decisions are coming back to haunt them, and as a result, states like Arizona are looking to cut very deeply, starting with two key health care programs.

First, the state is looking to eliminate its Children’s Health Insurance Program — a program funded jointly between federal and state governments. The program is expensive and many studies have shown that much of the money is spent in replacing private coverage with state coverage (25 to 50 percent according to a Government Accountability Office study). Arizona is also looking to end the Arizona Health Care Cost Containment System — Arizona’s version of Medicaid. These significant cuts would remake the state’s social welfare system. The moves would also protect the states from additional costs if current versions of federal reform do move forward.