Supreme Court ruling on health care could set Ohio on collision course

6/28/2012

COLUMBUS — The landmark U.S. Supreme Court ruling upholding President Obama’s signature health care law could set Ohio on a collision course with the law’s implementation here.

While supporters of the law applauded the high court ruling, the man who wrote the constitutional amendment approved last year by voters pledged to sue in federal court to, among other things, prevent the state from creating the insurance exchanges mandated by the law.

That constitutional amendment generally prohibits governments from imposing health insurance on Ohio residents or from imposing related penalties.

But the state’s top lawyer, Republican Attorney General Mike DeWine, said he believes the state constitutional amendment cannot thwart implementation of federal law requiring virtually all Americans to have health care. That could put him in an awkward position if his client, the state of Ohio, is sued based on a provision of its own constitution.

“The state’s side means that he defends the state constitution,” said Maurice Thompson, director of the 1851 Center for Constitutional Law and author of the amendment. “So presumably, he’s on our side…If he takes the other side, I think he’d be abdicating his duty.”

Mr. DeWine, who made entering the multi-state lawsuit a central issue in his successful 2010 campaign for attorney general, said the constitutional amendment would prevent the state from implementing a Massachusetts-like health care law but not a similar federal law.

“You certainly cannot override what the United States Supreme Court did today,” he said.

Today’s ruling also means the state, barring a successful court challenge, will have to race against the clock to implement the exchanges, or pools, through which private insurers would compete for the business of low-income and other uninsured Ohioans who would face fines if they don’t buy coverage.

“This is a great day for Ohioans,” said Cathy Levine, policy director of the Universal Health Care Action Network of Ohio. “No longer will they have to worry that getting sick means going broke. They’ll have the security to know that health care is there when they need it, and there are protections against insurance company overreach…They can no longer cancel your insurance if you get sick. This is a great day.”

She said the Kasich administration and lawmakers will have to “scramble” to enact an exchange or run the risk of having the federal government impose a one-size-fits-all alternative.

“Not many Ohioans, regardless of political affiliation, want a federally imposed exchange instead of Ohio running its own exchange,” Ms. Levine said. “I haven’t found a lawmaker yet who told me that, if the law were upheld, he’d rather have the federal government operate the exchange.

“The federal government has extended deadlines to give states more time to apply for funding, but they haven’t changed the implementation date of the law, Jan. 1,. 2014,” she said. “Ohio is way behind and is going to have to work overtime to play catch up.”

Lt. Gov. Mary Taylor, who doubles as state insurance director, spent much of the last year on the speaking circuit criticizing the law while it was under challenge. As the court fight went on, she was criticized by supporters of the law for failing to apply for federal grants to develop the exchanges.

Many of those expected to turn to the exchange in search of more affordable policies would probably be of lower income and eligible for government subsidies.

According to an analysis by Milliman, Inc., a consultant hired last year by the Ohio Department of Insurance, the number of uninsured Ohioans would be expected to drop from 1.5 million in 2010 to 712,000 by 2017 under the law.

Many would be added to the rolls of the federal-state Medicaid program, the taxpayer-supplied health coverage of last resort for the low-income and infirm.

In a joint statement, Gov. John Kasich and Ms. Taylor said they will analyze the decision before determining their next step.

“We’re very disappointed that this flawed law has been allowed to stand,” they said. “The Supreme Court has confirmed what everyone knew all along, but that the White House tried to deny — this is a massive new tax on the middle class.”

“Hopefully, Congress will eventually repeal the law altogether and replace it with improvements that actually address the most pressing needs in health care, especially the need to reduce costs in order to improve access,” they said. “Until then, Ohio taxpayers could be saddled with dramatically higher costs.”

The court’s decision drew sharply mixed reactions from local figures, most of whom issued prepared statements.

“By upholding the Affordable Care Act, the Court affirmed to the American people that quality, affordable healthcare is their right; that they live in a country where basic human rights are valued above all else,” said U.S. Rep. John Dingell (D., Monroe).

“Today, because of this avowing decision, more families will receive free preventive services, small businesses have more capacity to attract the highest quality employees with the ability to offer comprehensive health insurance, and seniors will be able to afford vital prescription drugs.”

Two Ohio legislators expressed disappointment in the implications of the court’s decision.

“While the Court has deemed the law constitutional as a tax on the American people, it is still flawed policy that is unaffordable for our families, our small businesses, and our government,” said U.S. Sen. Rob Portman (R., Ohio). “The President’s one-size-fits-all health care spending law is the centerpiece of a failed agenda that has increased economic uncertainty, stalled job creation, and deepened the spending hole that Washington has dug.”

U.S. Rep. Bob Latta (R., Bowling Green) voiced similar concerns with the law.

“Since the passage of PPACA, the American people have found that costs will go up not down, and many patients will not be able to keep the coverage they have currently. With the Court’s ruling, we now know this as a massive tax increase on the middle class,” he said.

The reasoning of the court’s ruling also drew criticism from Samuel “Joe the Plumber” Wurzelbacher, who is running as a Republican against U.S. Rep. Marcy Kaptur (D., Toledo) for Ohio’s 9th Congressional District.

“I’m extremely disappointed with the decision,” he said. “Back in 2011 Ohioans in the 9th District and across the state overwhelmingly rejected the Affordable Care Act and it shows that the people’s will, the people’s voice, has not been heard.”

Both Mr. Wurzelbacher and Mr. Latta said they support repealing the Affordable Care Act.

Mr. DeWine, while saying he was disappointed in the ruling, applauded the court’s decision not to uphold the law under the guise of the federal constitution’s clause granting Congress the power to implement the insurance mandate as part of its powers to regulate interstate commerce.

“We may have lost this battle, but we certainly won the war today in regard to liberty and freedom and what the federal government can do to compel us to do as far as the commerce clause…,” he said.

The state’s business community said the decision finally brings certainty to employers who remain the primary source of health insurance for working Ohioans.

“Today’s decision establishes the constitutional validity of the law and will allow employers to plan for the realities of how to comply with it,” said Keith Lake, government affairs director for the Ohio Chamber of Commerce.

“But the sheer complexity of the ACA — not to mention the politics surrounding it, which the court’s decision certainly doesn’t halt — means it may still be many more months before employers have the clarity and certainty they really require,” he said.

The insurance industry-based Ohio Association of Health Underwriters offered its help to the Kasich administration, the General Assembly, and developing choices for Ohioans.

“…(I)mplementation deadlines for Health Benefits Exchanges will be rapidly approaching and Ohio and many other states will now have to take a hard look at whether they want to implement a state exchange or cede that responsibility to the federal government,” said Denny Reicker, legislative chairman for the insurance industry-based Ohio Association of Health Underwriters.

“The implementation of exchanges will mean that more people than ever before will be making an individual decision to choose their health insurance, which is why the role of the professional agent will be more important now than ever before,” he said.

Staff writers Casey Sumner and Tom Troy contributed to this report.