In a ruling that puts Ohio on a collision course with federal government, the U.S. Supreme Court Thursday upheld the Affordable Care Act nearly in its entirety, concluding that a controversial individual mandate to buy health insurance was a legitimate exercise of Congressional taxing authority.
In a modest victory for conservatives, the court also made it optional for states to participate in the expansion of Medicaid.
The Affordable Care Act is highly unpopular in Ohio. Last November, voters approved by a 2-to-1 ratio Issue 3, a state constitutional amendment asserting that “no law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system” and that “no law or rule shall prohibit the purchase or sale of health care or health insurance.”
Many called Ohio’s rejection of Obamacare merely symbolic, as federal law generally preempts state law.
As Ohio Attorney General Mike DeWine, one of 26 state attorneys general who joined the lawsuit to overturn the Affordable Care Act, told the Toledo Blade last fall, “If you have a decision of the Supreme Court of the United States of America that validates the Obama health-care law, I’m not sure how passage of this act would roll that back based on the Supremacy Clause.”
Dennis Recker, legislative chair of the Ohio Association of Health Underwriters (OAHU), said before the ruling that his association would be affected no matter what the Supreme Court decided.
“If the law is upheld, Ohio will be facing rapidly approaching Health Benefit Exchange implementation deadlines,” he said just before the decision. “Ohio will now have to take a hard look at whether to implement a state exchange or cede that responsibility to the federal government.”
The health insurance exchanges are supposed to be operational by Jan. 1, 2014, but the federal government will do a progress check at the end of this year, and may run its own exchanges in states where insufficient action has been taken.
Due to its broad language, Issue 3 could have consequences that outlast the current debate.
“Because of the Supremacy Clause in the U.S. Constitution, Ohio will have to comply with federal law whatever it is,” said Janetta King of Innovation Ohio. “Issue 3’s real impact will be on state and local laws and rules.”
Aside from health insurance, Issue 3 basically freezes the state’s current healthcare system in place, experts said.
While the amendment forbids compulsory participation in health care systems, it doesn’t affect any laws in place as of March 19, 2010.
Maxwell Mehlman and Jessie Hill of Case Western Reserve University School of Law determined that the amendment forbids any changes to laws governing Workers Compensation, health programs for the unemployed, school immunizations, and health insurance order as child support.
For example, on April 1, 2009, Ohio’s so-called “mini-COBRA” plan for former employees of small businesses was expanded, with benefits extended from six to 12 months, which could be difficult to reverse if the budget deteriorates.
The broad definition of “health care system” could also affect disease tracking and abortion notification requirements, among others, the professors concluded.
Abortion restrictions could also be affected. The Affordable Care Act allows states to decide whether abortion should be covered by insurance sold on the exchanges. Ohio said no. Kasich signed the bill in January, but the American Civil Liberties Union immediately sued, arguing the bill violated the new Issue 3 constitutional requirement that “no law… shall prohibit the purchase… of… health insurance.”
The Ohio State Medical Association, which represents 20,000 doctors in Ohio, didn’t take a position in advance of the ruling. During the debate two years ago, the group supported guaranteed issue and other measures increasing coverage, while opposing what it saw as unrealistic Medicare reimbursement rates.
Elected Republicans from Ohio expressed disappointment at the ruling.
“While I am disappointed in Justice Roberts’ decision, he was the leader in restricting the Commerce Clause, an expansion of which would have been detrimental to our country,” DeWine said. “If that would have been upheld, it would mean there are no limits to what Congress could compel Americans to purchase.”
“Today’s ruling underscores the urgency of repealing this harmful law in its entirety,” said House Speaker John Boehner (R-Ohio). “What Americans want is a common-sense, step-by-step approach to health care reform that will protect Americans’ access to the care they need, from the doctor they choose, at a lower cost.”
To build support for the law, Progress Ohio started a project called Healthy Stories Express, which allowed people to tape a message about how Obamacare would affect them.
Kellie Copeland, executive director of NARAL Pro-Choice Ohio, shared her experience not as an advocate, but as a small businesswoman.
“Several years ago, we hired a gentleman to work for us,” she said. “As a woman’s rights organization, for the most part, we have had women working for us, so this was a little bit new. And I was shocked when I got the insurance bill and found that the female employee I had of a similar age, I’d been paying about $500 a month for her insurance. His insurance was $175 a month.”
Obamacare outlaws the practice, known as gender rating.
“As a small business owner, that was a disincentive to me, frankly, to hire women, because then I knew that every woman I hired cost me $4,000 more per year than any man that I hired,” Copeland said.
In a message taped earlier this month, Anjel Francisco, a 24-year-old recent college graduate who was named Miss Greater Butler County, said that the Affordable Care Act would allow her to stay on her parents’ insurance while she travelled the country seeking the title of Miss Ohio and Miss America, something she wouldn’t be free to do if she had a job.
“The job of Miss Ohio and of Miss America is a very strenuous one,” she said. “You’re travelling 20,000 miles a month on average and you’re never in one city for longer than 48 hours.”
“Now, thanks to this new law, I can stay on my parents’ health insurance as I journey forth in search of the title of Miss Ohio and Miss America,” she said.
Sadly, Francisco lost the Miss Ohio competition Saturday. Fortunately for her, in Ohio, insurance companies already have to offer parents the chance to buy insurance for their children up to age 28.
That’s not high enough for Rep. Steve Stivers (R), who is pushing a plan to raise the mandatory coverage age for dependents to 31, which is not expected to have much effect on beauty pageants.ef Justice John Roberts joined with the liberal wing of the court on a 5-4 vote to uphold the Affordable Care Act.
A majority of the court found that regulatory power under the Commerce Clause would not be enough to uphold the penalty to be assessed everyone who fails to buy government-approved health insurance. But Chief Justice John G. Roberts joined the more liberal wing of the court in finding the law Constitutional under Congressional taxation authority.
“Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it,” the majority opinion read.
Under long-established precedent, the Supreme Court doesn’t rule on taxes before they go into effect, but decided in this case, that the penalty wasn’t a tax as such, so there was nothing to stop them from upholding it.
While the individual mandate drew most of the attention in the Supreme Court debate, the biggest issue for state governments is the expansion of Medicaid coverage, which is now mandated for everyone up to 133 percent of the poverty line.
Medicaid until now has been for poor families with children, pregnant women, the blind, the elderly, and a few other groups. The new law would cover every person with income below the established level.
The Court found that Congress cannot strip current Medicaid funding from states that refuse to go along with federal expansion of the program.
As Roberts wrote, “Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.” (p. 55)
This issue will receive a lot more attention in coming weeks, as the incentives in Obamacare are front-loaded, and may prove unpersuasive to states struggling with tight budgets.
While the federal government is covering some of the initial costs, the burden over the long run falls to the states.
Ohio already cut $1.4 billion from Medicaid in its last biennial budget.
Around the nation, states are rolling back Medicaid spending by cutting the types of services available.
A four-member minority would have thrown out the entire law.
“In our view, the entire Act before us is invalid in its entirety,” they wrote.
It remains to be seen whether the majority view on the limits of Commerce Clause authority will have much effect on existing legislation. The opinion suggests some hostility to arguments that doing nothing counts affects one sort of commerce or another.
“The power to regulate commerce presupposes the existence of commercial activity to be regulated,” the majority wrote.