DeWine: Decision trumps Ohio law

State insurance exchange needed

COLUMBUS -- Opponents of the federal health-care law upheld by the U.S. Supreme Court cannot use the Ohio Constitution to stand in the way of its implementation here, the state's top lawyer said on Thursday.

Republican Attorney General Mike DeWine, who joined the multistate challenge to the law after taking office last year, said a state constitutional amendment overwhelmingly approved by voters last year cannot trump federal law.

Attorney General Mike DeWine

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

Maurice Thompson, director of the 1851 Center for Constitutional Law, wrote the state constitutional amendment that generally prohibits government from forcing Ohioans to participate in a health-care system or imposing related penalties on them if they don't. It was added to Ohio's Bill of Rights.

He said Thursday he will use that amendment as grounds to sue the state to, among other things, prevent Ohio from taking steps here to create an insurance exchange as mandated by the law.

"The state's side means that [Mr. DeWine] defends the state constitution," he said. "So presumably, he's on our side. … If he takes the other side, I think he'd be abdicating his duty."

If nothing else, he said a lawsuit filed by his organization could further delay implementation of the law in Ohio until after the November presidential election.

"Far be it from us to have Mitt Romney as our last best hope, but if he were to prevail, we could stop Obamacare that way," Mr. Thompson said. That would assume, however, that Republicans would also take control of the U.S. Senate from Democrats.

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Although disappointed that Ohio and 25 other states weren't successful in having the individual mandate struck down, Mr. DeWine said the reach of Ohio's constitutional amendment is limited.

"The Ohio constitutional amendment is still in effect," he said. "It prohibits Ohio from passing a health-care plan for the state of Ohio."

Lee Strang, a University of Toledo professor of law, was surprised by Thursday's ruling. He had initially believed that the court would uphold the law but changed his mind after watching the oral arguments. He is fairly confident, however, that Ohio's Constitution cannot now serve as a roadblock.

"The standard rule is that state law cannot trump valid federal law, and the Supreme Court just ruled that the individual mandate and most of Obamacare is valid federal law," he said.

This debate occurs as a Jan. 1, 2014, effective date looms for the individual coverage mandate. Ohio must tell the federal government by Nov. 16 of this year whether it plans to implement its own plan or leave it to the federal government to do it for them.

Lt. Gov. Mary Taylor, who doubles as Gov. John Kasich's insurance director, said the state is considering the latter.

"At this point, the governor and I don't see how setting up a state-run exchange is best for Ohio," she said. "It's the way we're leaning."

Through the state exchanges, private insurers would compete for the business of customers who would be driven to it by the mandate. Many of those customers would be of lower income and eligible for government subsidies.

Ms. Taylor spent much of the last year criticizing the law. She has been challenged by the law's backers for failing to apply for federal grants to develop the exchanges.

The Kasich administration estimates that, in 2014, 319,000 more Ohioans will join the Medicaid rolls for a total additional cost of $1.3 billion a year, $369 million of which will be borne by the state. By 2018, the total is expected to reach 440,000 for a total cost of $1.9 billion a year, $675 million of which will be the state's responsibility.

"We cannot meet our goals and also comply with Obamacare and the mandate under it," Ms. Taylor said. "At this point, as we're dealing with Medicaid, we also have additional fiscal concerns that we're taking into account."

Cathy Levine, policy director of the Universal Health Care Action Network of Ohio and a major supporter of the federal law, said Ohioans do not want to turn the reins of its exchange over to the federal government.

"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," she said.

In a prepared statement, Mr. Kasich again called for the law's repeal.

"The Supreme Court has confirmed what everyone knew all along, but that the White House tried to deny," he said. "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.

"Until then, Ohio taxpayers could be saddled with dramatically higher costs," he said.

Contact Jim Provance at: jprovance@theblade.com, or 614-221-0496.