Health Care Freedom Amendment Still Shields Ohio From Obamacare

Maurice Thompson asserts the Ohio Health Care Freedom Amendment will shield Ohioans from Obamacare even if state officials surrender to liberal demands and attempt to implement the president’s 2010 health law. Thompson, the amendment’s author and executive director of the 1851 Center for Constitutional Law, distributed an email discussing the way forward after the June 28 Supreme Court decision upholding much of Obamacare.

In the 2011 general election, 2,268,470 Ohioans voted for the Ohio Health Care Freedom Amendment, an amendment to the Ohio Constitution “to preserve the freedom of Ohioans to choose their health care and health care coverage.” The citizen-driven ballot measure passed 65.6 percent to 34.4 percent even though it was listed on the ballot as Issue 3 – below the public union reform referendum, which union front We Are Ohio sank $41 million into spurring “No” votes against.

Innovation Ohio and other supporters of socialized medicine have criticized the administration of Governor John Kasich, a Republican, for its refusal to implement Obamacare’s key features: a state-based insurance exchange and expanded Medicaid eligibility. Despite the ongoing push from left-wing advocacy groups for Ohio to accept the Supreme Court decision as the final word on the issue, Thompson has indicated he will utilize the Health Care Freedom Amendment to block Obamacare’s mandates.

In his July 2 letter, Thompson wrote that stopping Ohio from creating a state-based Obamacare exchange is the first step to stopping Obamacare itself. Lacking both the funding and the statutory basis to give citizens credits for purchasing insurance through a federal exchange, the federal government will also be unable to tax employers who fail to meet coverage mandates, according to Case Western law professor Jonathan Adler and Cato Institute policy analyst Michael Cannon.

“The federal government might create exchanges in states that decline, but it cannot offer credits through its own exchanges. And where there can be no credits, there is nothing to trigger that $3,000 tax,” Adler and Cannon wrote in a June 25 story for USA Today. After Adler and Cannon first reported this Obamacare “glitch” last November, the IRS approved a rule meant to address the problem. Adler and Cannon discussed the statute and the IRS attempt to rewrite it in a July 16 paper, “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA.”

In short, national policy experts believe federal Obamacare exchanges cannot fiscally or legally function. Equipped with the Health Care Freedom Amendment, Thompson is confident a state-based exchange will not stand in Ohio even if the Kasich administration has an abrupt change of heart.

Thompson listed stopping Obamacare’s called-for Medicaid eligibility expansion as the second step to blocking Obamacare’s effects in Ohio. Following the Supreme Court ruling, Lieutenant Governor and Department of Insurance Director Mary Taylor suggested Ohio would not raise the Medicaid eligibility cap because the Kasich administration sees no way to pay for it.

Thompson also called for “a rights-based challenge to the mandate.” In his opinion, additional action should be taken against Obamacare on the grounds that being compelled to provide an insurer with personal information violates a citizen’s right to privacy. Further, Thompson claims Obamacare violates citizens’ freedom of association by forcing individuals to contract with insurers.

“And most importantly,” Thompson wrote, “Courts have yet to address the Substantive Due Process implications of the Health Care Freedom Amendment. The Fifth Amendment still protects certain liberty interests. Amongst these is the right to control one’s own body; the right to refuse medical treatment, and the right to direct the upbringing and education of one’s own children. The mandate deprives one who believes in an alternative form of health care from fully directing their own health care decisions: they may have to buy less organic food, get less acupuncture, and forfeit their health club membership in order to afford health insurance. Once we recognize the existence of a budget constraint, we see this loss of direction.”

“Through placing the Health Care Freedom Amendment in Ohio’s Bill of Rights, we’ve given ourselves the strongest claim in the nation for a fundamental right to be free from a one-size-fits-all individual health insurance mandate. And we intend to use it,” Thompson added.

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