Oklahoma State Rep. Mike Ritze is a foot soldier—one of hundreds— in a passionate war over the Affordable Care Act that is reigniting as state legislatures convene across the country.
The Republican lawmaker, a family doctor, has stood behind three anti-Obamacare bills supported by conservative groups in Oklahoma and other states. None has made it into law, but Ritze plans to pick up the fight in the 2015 legislative session that convenes in the Sooner state next month.
“We need to do everything we can to try and reverse this,” said Ritze, who practices in Broken Arrow. “We can make it harder to enforce if the states get together…to attack it on all fronts.”
In Washington, there’s been little consensus on modifying the health reform law—short of repeated votes in the House to kill or cripple it. That might change as Republicans take control of the House and Senate, though what fixes, if any, Congress might prescribe—and whether any can get a signature from the President— aren’t clear.
But in state capitals around the country, from Albany and Columbia to Austin and Sacramento, lawmakers have been mulling over hundreds of proposals that reflect a myriad of starkly different views on Obamacare as settled law.
A Center for Public Integrity review found that more than 700 Obamacare-related bills were filed in the states during 2014 or carried over from 2013 in states where legislatures allow that. Five states, California, Hawaii, Illinois, New York and Washington, saw 50 or more health bills each, according to data from the National Conference of State Legislatures, or NCSL.
“The number of bills is remarkable,” said Richard Cauchi, a NCSL health legislation expert.
It’s not yet clear how many will be reconsidered in 2015 — many states are just kicking off their legislative sessions— but few expect any substantial retreat from the battlefront.
“There are definitely strong opposing opinions on the topic of the Affordable Care Act,” said Cauchi.
A bit of everything
Some bills seek to “nullify” the law or find creative ways to hinder its enforcement, while others are perennial filings inspired by tea party activists and other early foes of Obamacare, such as the John Birch Society, a review by the Center for Public Integrity found.
Dozens of anti-Obamacare bills appear to take their cues from a handful of activist groups – some well financed at least partly by big corporate donors and others run on shoestring budgets.
On the flip side, scores of bills to bulk up Obamacare have also landed in state hoppers, especially last year. Most would either expand eligibility for Medicaid, the health care plan for low-income people funded by states and the federal government, or require insurers to cover more medical services than the Affordable Care Act currently requires.
NCSL data show that to date pro-Obamacare forces have had the upper hand in bills actually signed into law. In all, more than 75 Obamacare-related bills were signed into law in 2014. About 50 moved the law forward, mostly by expanding Medicaid, while the rest appeared to impede the reach of Obamacare. Lawmakers in New York, for instance, extended insurance benefits to veteran horse racing jockeys in the state, while Tennessee and Georgia prohibited Medicaid from growing in size.
But the tide may be shifting. Conservative groups which have tried to peck away at the law say they feel energized by Republican gains in state legislatures in 2014 mid-term elections. Republicans now control 69 of 99 chambers in the states, according to the Republican Legislative Campaign Committee.
“Everyone has focused on the gains in (Washington), but there were quite a few gains at the state legislative level by the GOP,” said Curtis Ellis, a spokesman for Competitive Governance Action, a Texas group campaigning to get rid of the Affordable Care Act.
Style and substance
Harvard University sociologist Theda Skocpol, a supporter of the law, said that some of the anti-Obamacare bills are “largely symbolic” and stand little chance of passage, but that others can put significant pressure on state governments.
Congress passed the Affordable Care Act in 2010 to help pay for health care coverage for millions of uninsured Americans. But the law leaves some key decisions on how to do so – such as what benefits to offer and how they should be marketed – partly up to the states.
State lawmakers also are awaiting the Supreme Court’s decision over the legality of subsidies paid in states which did not set up their own exchanges. A ruling in the case, King v. Burwell, is due this summer and could radically shake up insurance markets.
That would no doubt result in a new flood of proposals. But state lawmakers haven’t been shy about weighing in to date.
Among the trends:
- More than 200 bills, most sponsored by Republicans, have attacked Obamacare’s foundation from different flanks. At least 25 bills seek to repeal or “nullify” it, while others would offset any fines collected from people who refuse to purchase health insurance, or otherwise limit the law’s reach. A “model” bill considered in at least 11 states would forbid state employees from enforcing any part of the law, in five states threatening those who do so with prison terms. Most didn’t pass.
- At least 85 bills would tinker with insurance exchanges set up by the states or the federal government to sell policies. Just over half would choke off funding or inhibit exchanges by cutting off their spending on marketing or advertising. Four bills would stop insurers from taking any federal subsidies paid under the law, though none passed. Overall, most of these bills measures failed to get through.
- More than 55 bills filed in about two dozen states tried to tighten oversight of “navigators,” who assist people in choosing a health plan that best fits their needs. Obamacare supporters see these bills as little more than a ruse to disrupt the law, and most did not pass. Yet six states in 2014 passed laws to tighten training standards or bar convicted felons from getting these jobs.
- At least 26 states have taken up bills that would petition Congress to let states make their own health-care financing decisions. The campaign, which critics consider a longshot, takes the view that Congress overstepped its bounds in passing Obamacare. Nine states have joined these health care compacts, data show. Nine compact bills were put forward in six states during 2013 and 2014, but only Kansas approved one, in 2014.
- While opponents hope to make headway in dismantling the law, boosters believe public acceptance of Obamacare is on the rise as more folks take advantage of its benefits. A tracking poll by the Kaiser Family Foundation showed a small drop in “unfavorable” views of the law over the past year, to 46 percent in the latest survey.
- More than 100 bills, most sponsored by Democrats, would expand Obamacare by covering more lower-income people under Medicaid or requiring insurers to cover new medical services. Most didn’t pass. Some two dozen bills would guarantee autism care for school-age children and others, for instance.
Improving the odds
Oklahoma legislator Ritze, 66, whose three bills to stymie the health care law have failed thus far, is hoping things will change in the 2015 session that opens in February.
The doctor, who said he has delivered more than 2,000 babies in nearly four decades of small-town practice, opposes Obamacare as “socialized medicine.” He argues it will prompt “rationing” of health care and wants to find ways to nullify the law.
Ritze, who likened his efforts to a military strategy, also has taken aim at some obscure pieces of the health reform law, such as a provision allowing social workers to make home visits to new or expectant parents.
“It’s a tremendous overreach by the federal government to come into your home,” he said. Ritze sought to ban the practice in Oklahoma after hearing of it through the John Birch Society, an early foe of Obamacare.
Similar bills to stop “involuntary” home visits have turned up in at least six other states, but none has succeeded.
“Obamacare forces Americans to buy products and services they may not want, has the potential to be used against parents via home visitations, and stands in between doctors and their patients,” Bill Hahn, a spokesman for the John Birch Society, said by email.
One high-profile group fighting Obamacare in statehouses is the American Legislative Exchange Council, or ALEC, which flexes its muscle with model bills on issues ranging from environmental regulation to the minimum wage.
The “free-market” group, says it works to “advance limited government” through partnerships with state lawmakers and the private sector. It has declined to name its funders, though news accounts have cited some major corporations and a foundation run by billionaire industrialists Charles and David Koch.
ALEC favors a “Health Care Freedom Act” which, among other things, would suspend the business licenses of insurers that accept “any remuneration, credit or subsidy” paid under the Affordable Care Act. The measure was introduced in Kansas, Missouri and Ohio, but didn’t pass.
ALEC also wants to shield state residents from the law’s reach. Though none succeeded, bills in five states read: “no law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system.” ALEC has tried to insert that phrasing into state statutes as far back as 2010.
ALEC also wants to require that state Attorneys General “preserve the rights and property of the residents of the state” by pushing back against the health care law in court. At least 16 such bills have been filed in 11 states, typically requiring the attorney general to defend citizens subjected to fines or “harmed” in any way by the law, among other things. ALEC-themed bills to nix Medicaid expansions have been introduced in at least nine states. Most didn’t pass.
ALEC spokeswoman Molly Fuhs said the group’s board, which includes 24 state legislators, kicks around ideas for model legislation and passes them on. She said ALEC members “feel strongly” about health care and are “looking for best ways to deal with it.” ALEC has a foil in the State Innovation Exchange, which says it helps advance “progressive legislation” in the states. The group has yet to write its own model bills, according to executive director Nick Rathod. He expects to be playing defense over the next few years to stop “rollbacks” of Obamacare in the states and predicts an “all-out assault” on the law from Republicans.
“They see an opportunity. If it were them I would be taking the opportunity, Rathod said.”
The Council of State Governments also offers up “suggested” state legislation, such as a bill to permit residents of one state to buy polices from out-of-state insurers. A dozen bills to do that have been considered, but just three passed.
Not all the activist groups in the fray are easily pigeonholed, or appear to be deep-pocketed.
The Tenth Amendment Center has found sponsors in at least 14 states for its “model” bill which argues that Obamacare “interferes” with the right of the people “to regulate health care as they see fit.” The law should be “nullified” under the 10th Amendment to the U.S. Constitution, according to founder Michael Boldin.
Nullification drives are often derided as unconstitutional given the supremacy of federal over state law, but Boldin thinks the tide is turning.
“A lot of people seem to think if the feds do something there’s no way to stop it. This is absolutely absurd,” said Boldin, who said he runs the 10th Amendment Center from the living room of his Los Angeles apartment.
Though he concedes detractors label his group as “crazies,” he points to marijuana as an issue that has split state and federal governments much as he would like to see happen with Obamacare.
While federal law makes pot illegal, a handful of states are debating, or have moved ahead with, bills to legalize the weed or tax and regulate its sale for medicinal use.
Boldin said adversaries are coming at the health reform law from “multiple directions,” with a range of tactics such as discouraging state insurance officials from enforcing key provisions, or by extending tax credits to cover any fines levied against people who refuse to buy insurance.
Along these lines, ten bills filed in five states would outlaw spending on advertising or marketing by the exchanges. “That would pull the rug out from under it,” Boldin said.
Not so fast, argues Claire McAndrew of Families USA, a staunch advocate of the law. She said state bills “wildly out of compliance” with federal law can’t stand court scrutiny and may amount to “grandstanding” by opponents. In one case, a federal district court in January 2014 struck down a Missouri law tightening standards on navigators, though the state is appealing.
Harvard sociologist Skocpol said restricting the exchanges may compel federal officials to sue to enforce their will, which in turn might make it harder for the law to take hold.
“It’s true that without any cooperation from the states, it’s very hard for ordinary citizens to find out what their options are,” Skocpol said.
A bill in Georgia, which did not pass, would have made it a felony punishable by a minimum of a $1,000 fine to five years in prison for any state employees found guilty of cooperating with the law. A similar bill cleared the South Carolina House in 2014, but with the criminal penalties removed.
Some legislators want their colleagues to get a taste of their own medicine by demanding that they shop for their own coverage on the exchanges.
Illinois Rep. Darlene J. Senger, a Republican and licensed financial advisor from Naperville, in May introduced a bill to make her fellow politicians “live by the same set of rules that they impose upon those they claim to represent.” Similar bills have been advanced in Oregon, Kentucky and California.