Backers of Issue 3 want us to believe that it’s about repealing the so-called “individual mandate” of what they call “Obamacare.”
In fact, it isn’t.
Under Article VI of the U.S. Constitution, federal law takes precedence over state law. And because the ACA is a federal law, its fate will be decided by the U.S. Supreme Court, not state ballot initiatives like Issue 3.
Instead, Issue 3 would amend the Ohio Constitution. And whether by design or incompetent drafting, its careless and ambiguous language would have huge consequences for already existing state and local laws that we depend on to keep us safe and healthy. It would also ensure a tsunami of law suits, and put Ohioans on the hook for millions in unnecessary legal expenses.
Don’t take my word for it. A recent study by the Columbus-based think tank Innovation Ohio and two distinguished law professors from Cleveland’s Case Western Reserve University shows the dire consequences Issue 3 would have for Ohio. You can read that study, “Bad Medicine: Unintended Consequences of Ohio’s Issue 3”, at www.innovationohio.org.
Incredibly, the author of Issue 3 said that analysis was “not far off” — and that he and his organization intended to go beyond the Affordable Care Act and hit other state and local laws as well. (“Issue 3’s Reach is Too Wide, Foes Say” 9/2/2011, Columbus Dispatch).
What are those laws and regulations?
Issue 3’s first provision prohibits compulsory participation in a “health care system.” But the definition of “health care system” is so broad that it would not only ban any future law (or changes to any current law) requiring individuals or companies to buy health insurance, but also programs requiring submission of health information, including those critical to preserving public health. Among these are disease tracking and reporting, mandatory college student health care coverage, Hospital, Mental Health and Developmental Disabilities tax levies, the monitoring of “Pill Mills”, and any future changes to programs like Workers’ Compensation, child support enforcement orders mandating the purchase of health insurance, and COBRA laws.
Issue 3’s other two provisions would not allow Ohio or any local government to “prohibit the purchase or sale of health care or health insurance” — or to “impose a penalty or fine for the sale or purchase of health insurance.” These provisions would jeopardize all post-2010 laws or rules — or any changes to laws or rules in existence prior to 2010—involving the regulation of health insurance and the licensing of medical providers and insurance agents. After all, “prohibiting the sale of health care and health insurance” is precisely the point of many of these laws, which are designed to protect consumers from unlicensed health care providers or the sale of deficient or substandard insurance policies.
In sum, Issue 3 would all but destroy Ohio’s ability to protect the vulnerable, ensure public health, or provide oversight of the medical and insurance professions.
David J. Betras is a Canfield attorney who has long been active in polictics and is chairman of the Mahoning County Democratic Party.