By Tobie Hazard
On Election Day, Colorado voters rejected Amendment 63, the Health Care Choice Act, which would have amended the Colorado Constitution to prohibit the state from requiring a person to obtain health care. The ballot initiative was intended to thwart President Barack Obama’s federal health care law signed last March, which requires almost all Americans to have health insurance by 2014 or face federal fines.
What Amendment 63 Would Have Done
Colorado law currently doesn’t require any person to carry health insurance coverage. Coloradans are free to purchase their own health insurance, participate in employer-sponsored health plans, enroll in Medicaid or Medicare (if eligible), or forgo coverage altogether and pay their health care providers directly.
But under the federal Patient Protection and Affordable Care Act (PPACA) passed in March of this year, by 2014, all but the poorest Americans will be required to have health insurance, and new state-run insurance exchanges will be set up to provide consumers with affordable options to private health insurers. Employers with 50 or more workers would be required to provide mandated coverage to their workers or pay a fine to the IRS. Similarly, almost all Americans would be required to obtain health insurance or else face federal fines.
Amendment 63 would have taken aim at the mandatory insurance provisions of the PPACA by amending the Colorado Constitution to:
- make health care choice a right under the state’s Bill of Rights,
- prohibit the state independently or at the insistence of the federal government from requiring Coloradans to join any kind of insurance plan, whether it’s a government, private, or employer program, and
- prohibit penalizing a patient for paying a doctor out of his own pocket for health care services or punishing a health care provider for receiving direct payments from a patient for services. Amendment 63 also would have prevented Colorado lawmakers from adopting a mandate like that passed in Massachusetts in which every resident must obtain a state-government-regulated level of health insurance coverage or else face tax penalties.
Opponents Deride Amendment 63 as Pointless
Opponents of Amendment 63 claimed that the initiative would do nothing to prevent the rollout of the federal PPACA because under the interstate commerce clause of the 10th Amendment to the U.S. Constitution, federal law trumps state law when the two cover the same issue or subject. Critics of the initiative also claimed Amendment 63 would leave the 750,000 Coloradans without health insurance the coverage they would receive under the federal PPACA.
Colorado AG Joins Suit Challenging Constitutionality of PPACA
Shortly after the PPACA was signed into law, Florida Attorney General Bill McCollum and attorneys general from 12 other states filed a lawsuit in federal district court in Florida claiming, among other things, that the PPACA’s mandate requiring American citizens to purchase a particular type of health insurance policy, as well as the PPACA’s unfunded mandate placing the enforcement costs of the Act on the states, violates the 10th Amendment to the U.S. Constitution. Colorado Attorney General John Suthers, who was reelected on November 2, is one of the attorneys general who joined McCollum in the lawsuit. In his campaign for reelection, Suthers took heat from his opponent for his decision to join the Florida lawsuit challenging the constitutionality of the PPACA.
Tobie Hazard is a co-editor of Colorado Employment Law Letter and a partner with Holland & Hart LLP, practicing in the firm’s Denver, Colorado, office. For questions about this article, please contact Tobie at (303) 295-8280.
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