Kansas considers constitutional right to refuse health insurance

While state legislators debate proposed laws, federal court rules health care reform ‘unconstitutional’

0 | Health Reform

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Richard Warner (right), former president of the Kansas Medical Society, testifies before the House Health and Human Services Committee. Rep. Jim Ward is second from right.

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— On the same day that a Florida court ruled the new health care law unconstitutional, Kansas lawmakers today debated a newly introduced bill and a constitutional amendment, both aimed at blocking implementation of the federal health reform law in Kansas.

The House Health and Human Services Committee was considering HCR 5007 — which would put on the 2012 ballot a proposed amendment to the state constitution prohibiting rules or laws that compel Kansans to purchase health insurance — and HB 2129, a statute that would assert the right of Kansans to refuse health insurance. Both are versions of similar bills introduced last year.

“We are saying the federal government cannot come in and tell the state of Kansas who, what, when, where and how they will handle health care insurance,” said Brenda Landwehr, chair of the committee.

“It will be a decision left up to the people of Kansas, should we pass the constitutional amendment,” said Landwehr, R-Wichita.

The federal health reform law includes a so-called “individual mandate,” that would require those who could afford health insurance to have it beginning in 2014 or pay a tax penalty.

Insurance company representatives — including Blue Cross Blue Shield of Kansas — have defended the individual mandate saying, without the requirement, large numbers of people would be free to put off buying health insurance until they were sick.

The mandate provision of the Affordable Care Act has been upheld by two federal courts and also has been ruled unconstitutional by two other federal courts — including today’s Florida ruling on a lawsuit that Kansas joined.

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Democratic critics said the bills debated today in Kansas, even if passed, could not stand up to federal constitutional law.

“There have been almost 200 years of Supreme Court decisions that have rejected the idea that individual states (can) nullify federal law,” said Jim Ward, D-Wichita, in a hallway interview with KHI News Service.

Ward wouldn’t speculate on what he thought the chances were of the proposed constitutional amendment or the proposed statute passing the Kansas House or Senate.

“It will be interesting,” he said. “We have 35 new people in the House, so it’s really hard to handicap without having any votes or anything to draw on. It would be total speculation. But the debate we saw here (today) was very vigorous. It will be interesting.”

In the committee debate, Rep. Annie Mah (D-Topeka) said that the proposed opt-out laws have gotten legislators “off track.”

“I think we should talk first about if we pass either of these, will it actually have an impact. I don’t think it will. I think (Kansans) should have a voice, and that’s what these federal lawsuits are about,” she said. “But we can’t pass a law that supersedes federal law, and that’s what the Constitution says … we can put it in the (state) constitution and it still won’t matter. If the Supreme Court says it’s constitutional, it will be the law here.”

One of those testifying before the committee — Richard Warner, a former president of the Kansas Medical Society — said that, nevertheless, passing the constitutional amendment would be an important gesture for Kansas to make.

“As the court case moves through the system, (the constitutional amendment) sends a clear message to the jurors out there that this is an important issue to the state of Kansas. Furthermore, it gives a voice to those Kansans and small businesses that haven’t had that.”

Mah responded: “To put something in our constitution that says just for the fun of it, we’re going to put something in the constitution that proves we don’t understand the Constitution — to me, makes us look unintelligent,” she said.

“My concern is that there’s nothing we can do here one way or the other,” Mah said.

A constitutional amendment requires a two-thirds majority to pass the House and Senate. If it passes both chambers it would be put on the ballot for Kansans to vote up or down in Nov. 2012. The statutory proposal will be decided on simple majority votes in the Kansas House and Senate.

Both the constitutional amendment bill and the statutory bill were scheduled to be worked tomorrow in the House Health and Human Services Committee, but Tuesday legislative meetings were canceled Monday evening due to forecast blizzard conditions.










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