Health Care Nullification Legislation

A reading of the Constitution through the original understanding of the Founders and Ratifiers makes it quite clear that any national health care plan, or national public option, is not something that was delegated by the People to the Federal Government in the Constitution.

However, the courts, politicians and many commentators have interpreted (and re-interpreted) the Commerce Clause, the general Welfare Clause and Necessary and Proper Clause in ways not intended by the Founders so as to justify such programs under the Constitution. They are most certainly wrong. A number of states are considering legislation to effectively nullify any future national health care plan.

Legend: Blue – Introduced. Yellow – Passed one or more houses. Green – Passed as Law.
Black – Failed Vote or Stalled in Committee

View Health Care Nullification Legislation in a larger map

This Tuesday, 10-27-09, Kansas State Senator Mary Pilcher-Cook and other state legislators will be announcing a “Kansas Health Care Freedom Amendment” – a proposal for a state constitutional amendment that would effectively nullify national health care in that state.  (h/t Jeff Matthews)

Already, four states are considering similar amendments, and more than 15 may see them introduced in the 2010 legislative session.

Writes Senator Pilcher-Cook

These last few months have made it abundantly clear to us — it is urgent to stand up now to protect our heath care in Kansas.

If federal legislation is passed, ordering government to give free health care (or perceived to be free), there will be an unlimited demand that even the government will not be able to meet. Rationing comes next — government-run health care cannot supply all citizens with the health care they desire, which results in the federal government making the decisions about when and where to deny individual requests for health care.

I am dedicated to:

• Preserving the freedom of Kansans to provide for their health care.
• Safeguarding the liberty of Kansans from any federal government action, which would coerce participation in a health care system.
• Defending the independence of Kansans to pay directly for health care services without penalty.

Here’s an excerpt of the proposed amendments’ text:

Article 16. — HEALTH CARE
1. Health care.

(a) To preserve the freedom of Kansans to provide for their health care:

1. A law or rule shall not compel, directly or indirectly, any person, employer or health care provider to participate in any health care system.
2. A person or employer may pay directly for lawful health care services and shall not be required to pay penalties or fines for paying directly for lawful health care services.A health care provider may accept direct payment for lawful health care services and shall not be required to pay penalties or fines for accepting direct payment from a person or employer for lawful health care services or shall not be disqualified or otherwise excluded from participation in any health care system.

(b) Subject to reasonable and necessary rules that do not substantially limit a person’s options, the purchase or sale of health insurance in private health care systems shall not be prohibited by law or rule.

(c) This section does not:

1. Affect which health care services a health care provider or hospital is required to perform or provide.
2. Affect which health care services are permitted by law.
3. Prohibit care provided pursuant to the provisions relating to workers compensation.
4. Prohibit care provided pursuant to the provisions relating to state employee benefit programs.
5. Affect laws or rules in effect as of August 1, 2009.
6. Affect the terms or conditions of any health care system to the extent that those terms and conditions do not have the effect of punishing or penalizing a person or employer for paying directly for lawful health care services or a health care provider or hospital for accepting direct payment from a person or employer for lawful health care services.

(d) For the purposes of this section:

1. “Compel” includes penalties or fines.
2. “Direct payment or pay directly” means payment for lawful health care services without a public or private third party, not including an employer, paying for any portion of the service.
3. “Health care system” means any public or private entity whose function or purpose is the management of, processing of, enrollment of individuals for or payment for, in full or in part, health care services or health care data or health care information for its participants.
4. “Lawful health care services” means any health-related service or treatment to the extent that the service or treatment is permitted or not prohibited by law or regulation that may be provided by persons or businesses otherwise permitted to offer such services.
5. “Penalties or fines” means any civil or criminal penalty or fine, tax, salary or wage withholding or surcharge or any named fee with a similar effect established by law or rule by a government established, created or controlled agency that is used to punish or discourage the exercise of rights protected under this section.

TAC