On the Nov. 8 ballot is a statewide initiative that purports “to preserve the freedom of Ohioans to choose their health care and health care coverage.” Issue 3 proposes to amend the state constitution in a manner that, according to its supporters, will protect Ohioans from ever being required by the federal, state or local government to participate in any way in the health-care system.
Issue 3 would offer no such protection. Worse yet, it would hamper the ability of state lawmakers and others to improve the quality of health care. It is unnecessary bluster, and it has the potential to do real harm. It should be rejected.
The stated goal of the measure is to pre-empt implementation of the “individual mandate,” the requirement in the 19-month-old health-care law that every individual buy health insurance beginning in 2014 or face penalties. Until a Democratic White House and Congress placed it into federal law, the concept had been part of the conservative argument that individuals would use health-care resources more responsibly and help curb costs if they had some skin in the game.
That was then. In the wake of the Affordable Care Act, conservatives have challenged the constitutionality of the federal mandate and mounted a nationwide campaign to repeal it, if not the entire law. Recall that one of the first official acts of Mike DeWine, Ohio’s Republican attorney general, was to join 25 other states (unwisely, this editorial page maintains) in challenging the mandate in federal court. Unless Congress changes the health-care law, the U.S. Supreme Court, then, is the ultimate arbiter of the constitutional question.
The federal constitution trumps state law. Other than as a show of defiance, Issue 3 is irrelevant, whether the Supreme Court eventually upholds the mandate or strikes it down. The proponents of Issue 3 are merely posturing when they suggest the measure somehow would insulate residents and employers in Ohio from federal requirements.
The greater mischief lies in the sweeping impact the proposed amendment to the constitution could have within the state. The language of the initiative is written broadly to apply not just to federal laws and rules regarding participation in a health-care system, the sale or purchase of health care and health insurance and related penalties. Issue 3 covers state- and local-level legislation, too.
Backers note the measure would not apply to laws and rules in effect on March 19, 2010. The concern, as analysts point out, is what happens to laws that have been passed since then and how Issue 3 would restrict future amendments to existing laws, among them child support enforcement orders, school immunization requirements, health data collection for public health purposes and court-ordered treatment programs.
Issue 3 deserves a resounding “no.”
