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Next Health Reform Challenges: Court Cases, State Laws
By Nancy Frazier O'Brien
Source: Catholic News Service
Published: Monday, June 07, 2010 WASHINGTON (CNS)—The new health reform law might have overcome its first hurdles, but it still faces a multitude of challenges—in the courts, in state legislatures and in the minds of many confused Americans.

Lawsuits in Florida, Michigan, Virginia and elsewhere are challenging the federal government's right to require individuals to purchase health insurance or face a penalty. Legislators in nearly 40 states have passed or are considering bills that would prevent penalties from being levied against individuals in those states who refuse to participate in the federal health plan.

Other states, using the model Federal Abortion-Mandate Opt-Out Act drawn up by the Washington-based Americans United for Life, are requiring that the state insurance exchanges to be created by 2014 not permit most abortions. AUL also is promoting model legislation that would allow states to bar private insurance plans operating within their borders from covering elective abortions; a third proposed law would prohibit the use of taxpayer funds to pay for elective abortions for state employees, as 14 states already do.

"While the White House would like to give the impression that the debate on health care is over, the truth is that it has just begun," said Dennis Smith, former director of the Center for Medicaid and State Operations at the U.S. Department of Health and Human Services, in a backgrounder for the Heritage Foundation, a Washington think tank.

"Like welfare reform legislation in the past, there are really three phases to reform," Smith added. "An act of Congress is just the first; now reform passes to the state level and eventually to the local level, and it is at the state and local levels that the real impact on the country's citizens will become apparent."

But the biggest challenge facing implementation of the Patient Protection and Affordable Care Act might be the widespread lack of understanding among average Americans about the health reform law's content and its impact on their own lives.
Polling conducted in mid-May for the Kaiser Family Foundation Health Tracking Poll among self-described likely voters found that 44 percent of respondents said they would describe themselves as confused about the new health reform law. That was down from 55 percent in April but still represented a large portion of the nation's population.

The drop was even more marked for women, 60 percent of whom had described themselves as confused in April. The percentage of women who said they were confused about the health reform law in mid-May was down to 45 percent, roughly equal to men.

Asked whether other words described their reaction to the health reform law, 45 percent said they were disappointed, 39 percent said they were pleased and 36 percent said they were anxious.

More than one-third of those polled (35 percent) said they did not understand what the law's impact would be on themselves and their families, while 61 percent said they did understand it.

Another result of the polling might go hand in hand with the widespread confusion. Nearly two months after health reform was signed into law, 44 percent said they held unfavorable views about it, with three in 10 describing their views as "very unfavorable." Another 41 percent said they had favorable views of the new law, including 14 percent who were "very favorable," and 14 percent said they didn't know or refused to answer.

The margin of error for the survey was plus or minus 3 percentage points.
The first state lawsuit against new mandates and taxes in the health reform law was filed March 23, minutes after it was signed into law by President Barack Obama. It maintains that the law's "mandate that all citizens and legal residents of the United States maintain qualifying health care coverage or pay a penalty (individual mandate) is an unprecedented encroachment on the sovereignty of the plaintiff states and on the rights of their citizens."

As of June 1, 20 states, the National Federation of Independent Business and two individual plaintiffs had joined the lawsuit against the U.S. departments of Health and Human Services, Treasury and Labor. In legal briefs responding to the lawsuit, the Obama administration said Congress' authority to regulate interstate commerce gives it the right to impose the mandate and that the minimum coverage requirement imposes no actual or imminent injury to the plaintiffs.

Virginia -- where a law was passed in March that specifically exempts its citizens from a mandate to buy health insurance -- has filed a separate lawsuit. The Department of Justice said in its legal response that a state cannot "manufacture its own standing to challenge a federal law by the simple expedient of passing a statute purporting to nullify it."

Similar legislation had been filed or pre-filed in 38 state legislatures by the end of May. Its goal is to protect patients' rights to pay directly for medical services and to prohibit penalties against those who decline to participate in a health plan, according to the American Legislative Exchange Council, which drew up model legislation called the Freedom of Choice in Health Care Act.

Other legislators, concerned that the executive order signed by Obama might not be sufficient to guarantee no abortion funding under the new health reform plan, are introducing legislation that would allow their states to bar insurance plans that cover abortions from participating in that state's exchanges.

According to Americans United for Life, such legislation has been introduced or is in the planning stages in 29 states.

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