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Legal Challenges to ObamaCare Rapidly Multiply

The number of states challenging ObamaCare is growing, and legal strategies are being formulated targeting success in the Supreme Court.

by
Clarice Feldman

Bio

May 21, 2010 - 12:00 am
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As a measure of the unpopularity of a law former President Clinton, Nancy Pelosi, and President Obama predicted would become more popular as the public got to read it, a burgeoning number of lawsuits seek to declare unconstitutional the Patients’ Choice Act. There are also other measures in state legislatures designed to block its application.

The Thomas Moore Law Center has filed suit on behalf of individuals who refuse to purchase the mandated individual health insurance.

There’s a lawsuit filed by Virginia arguing that the new law clashes with a state law that exempts Virginians from federal fines for failing to purchase health insurance.

Twenty states now joined by a private litigant, the National Federation of Independent Businesses, have filed a complaint which challenges the constitutionality of the law.

The plaintiffs in this case at last count: Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, South Carolina, South Dakota, Pennsylvania, Texas, Utah, and Washington.

U.S. Citizens Association has filed suit in Ohio seeking to have health insurance reform overturned on the grounds that it violates individuals’ rights to medical privacy.

More than 12 states, including some who are plaintiffs in the multistate challenge, are seeking to enact legislation like that in Virginia, which would exempt from federal fine those who refuse to obtain medical insurance.

The Georgia and Oklahoma legislatures have passed measures like Virginia’s, and the Missouri legislature approved allowing a similar provision to appear on a statewide referendum in November.

As the various efforts to amend state laws and constitutions take place, the litigation proceeds. But no matter how aggressive the plaintiffs’ counsel are, these cases are not likely to lead speedily to the Supreme Court. And it is the Court which, I predict, will have to have the last word on this unprecedented legislation (and unprecedented nationwide response) unless it is repealed before it gets there:

This is going to be a long, protracted war of attrition and we haven’t even seen the first wave of regulations yet,” said Clint Bolick, litigation director of the Goldwater Institute — an Arizona-based group that is advising state officials.

Supporters of the overhaul argue that if insurance were not mandated, costs would rise to prohibitive levels: Since the law will bar insurers from excluding people with pre-existing conditions the sick and elderly would be vastly over-represented in the insurance pool if other people held back. They also point to the Supreme Court’s long record of upholding congressional authority to regulate the economy by imposing taxes, to impinge on personal freedoms in the national interest and to supersede conflicting state laws.

The private lawyer advising the states, David B. Rivkin Jr., a former Justice Department official under Presidents Ronald Reagan and George H.W. Bush, said he anticipated that the judge would hear arguments on the case as soon as mid-September. “It’s an aggressive schedule,” he said.

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