Update: Amish Daughter Healthy Despite Health Care “Experts”

In this picture, taken September 24, 2015 at the Hershberger’s roadside stand — Sarah (2nd from right) with her father and four of her nine siblings.

Yesterday I visited the home of Andy and Anna Hershberger to deliver the good news that the Medina County Probate Court had at long last formally terminated the guardianship it had created over their now 12-year-old daughter, Sarah.

A government hospital, Akron Children’s Hospital, sought to establish the guardianship to take Sarah from her Amish parents and seven siblings to force chemotherapy on her, even though all signs indicated that the chemotherapy itself appeared to be killing her, was certain to sterilize her, and would no doubt permanently change her life for the worse, even if she were to survive it.

The parents objected, seeking to treat Sarah’s mild form of cancer with a less invasive alternative treatment that appeared to be succeeding. It was at that time – – June of 2013 – that one of the State’s doctors testified that absent “immediate chemotherapy” Sarah would certainly be dead within six months. The court found this evidence compelling.

As the Amish community was put in touch with the 1851 Center, court battles ensued. Ultimately, those battles resulted in protecting Andy and Anna Hershberger’s fundamental constitutional right to make important health care decision for their daughter.

Two years later, having never undergone chemotherapy, Sarah couldn’t be healthier. Court records disclosed at yesterday’s hearing indicated the following:

  • “[Sarah] exhibits no symptoms of lymphoma”
  • “There are no reports or indications that Sarah cannot keep up with her work or her siblings on a daily basis.”
  • “Medicine is not always right, as evidenced by Sarah’s survival in the face of ‘certainty’ she would die without treatment”
  • “There is no need for Sarah’s health to be on the Court’s radar”

This case exposed the worst of the alignment between health care “experts,” Ohio’s big hospital lobby, and faulty government legislation:

  • The statute at issue, still on the books, gives Ohio judges the freedom to overrule suitable parents when they hold a differing opinion as to the “best interests of the child.”
  • Government hospitals put forth so-called experts to testify that there is only one way to treat a particular ailment, and that “one best way” must be imposed through forced health care, even over parents’ thoughtful objections.
  • Average Ohio parents lack the resources to hire an expert doctor to rebut the so-called “expert” doctor that their government is using against them (funded by their own tax dollars).
  • So long as government locks in “the one best treatment” by forcing all to comply with that protocol, medical innovation and experimentation will suffer.

Fortunately for Sarah, the Amish community is not conventional, and refused to bow to government commands. We at the 1851 Center are proud to have played a role in defending suitable Ohio parents’ moral and constitutional right to make important health care decision for their children.

But this battle continues. Ohio suffers from a cavalcade of health care “experts”, eager to deprive of us of our autonomy in light of their “certainty” that they know what is best for us.

But as this now-closed saga has proven, these experts have no skin in the game, arrogantly pontificate without fear of consequences, and are in fact frequently wrong.

Ohioans cannot afford to trust their health or their children to government expertise. We have already been swept into a system whereby we are forced to fund much of what now passes for health care in our state and nation, whether we use it or not. But the matter of whether we must be forced to use itis another matter entirely.

The Ohio General Assembly – – members of which laud health care freedom, family values, and parental choice while campaigning for office – – cannot justify maintenance of Ohio’s wide-open and highly subjective “best interests of the child” test. This test allows county judges to overrule health care, educational, and other important decisions of suitable Ohio parents. Once overruled, children can be immediately seized from their homes.

In the wake of Sarah’s case, this concept came to be known as “medical kidnapping.”

The Hershberger’s case is a lesson for all of us: we’re not as smart as we think we are. Knowledge is decentralized, and when in doubt, those closest to the situation, families (and not government experts with special designations next to their names) must make life-altering decisions.

Further, Sarah’s good health bolsters the case against forced health care that we supposedly cannot live without (literally, in this case).

It is now time for Ohio legislators to protect Ohio families from wayward judges. This can be done by reforming Ohio’s unconstitutional “best interests of the child” test.

In the meantime, Ohioans must continue to question authority.

Maurice Thompson
Executive Director
1851 Center for Constitutional Law

Watch a 2013 video on the case from Reason.tv:

reason_amish

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Obamacare in Ohio: Outcome of Wednesday’s Supreme Court Argument Will Be Pivotal

Prescription drugsColumbus, OH – On Wednesday March 4, the U.S. Supreme Court will hear its latest challenge to the Affordable Care Act – – this time a challenge to how the President and the IRS are enforcing the law. If that challenge prevails, both the ACA’s employer mandate and tax credits to individuals will be forbidden in Ohio, because Ohio’s Health Care Freedom Amendment prohibits the state from establishing a state exchange.

Should Governor Kasich still move to establish a state based Obamacare exchange, the 1851 Center is prepared to take legal action to stop it.

The Lawsuit: King v. Burwell

The lawsuit, King v. Burwell, addresses one of the ACA’s cornerstones: the insurance exchanges created by Obamacare. More specifically, the questions revolves around the IRS’s interpretation of a provision of the law that authorizes tax credits for health insurance purchased through an exchange “established by the state.”

Section 1401 of the ACA offers health-insurance “tax credits” to certain taxpayers who enroll in a qualified health plan “through an Exchange established by the State.”

Pursuant to this Section, Obamacare creates “premium assistance,” taxes credits and subsidies, to offset the costs of health insurance premiums that all agree Obamacare causes. Essentially, these tax credits and subsidies were designed to mask the full extent of outlandish cost increases imposed on health insurance producers and consumers by the Act. However, they also comprise the bulk of the hundreds of billions of dollars in federal spending triggered by Obamacare.

When 36 states chose not to establish their own exchanges, the federal government stepped in and created federally run exchanges in those states. The IRS then extended the tax credits for insurance purchased through the federally run exchanges – an interpretation that directly violates the plain language of the law, and subjects employers in these states to the “employer mandate” – – a $3,000 penalty that is assessed each time one of its employees purchases subsidized health insurance through an exchange.

The challengers argue, quite reasonably, that the statute limits the tax credits and subsidies to state established Exchanges in a manner that is plain and unambiguous, and that the remainder of the ACA and its legislative history are fully consistent with those provisions. The Obama administration responds that the phrase “through an Exchange established by the State” includes federally established exchanges and, alternatively, that the statute is vague enough to allow the executive branch to decide whether (or not) to offer subsidies in federal exchanges.

The challengers have a high likelihood of prevailing, given the Administration’s weak arguments. If they do, insofar as the IRS has sought to provide tax credits for the purchase of health insurance in federally established Exchanges such as Ohio, its actions are contrary to law and must be set aside. This means subsidies for those using the ACA exchange would be unavailable to Ohioans, but also that Ohio employers would not be sanctioned.

A State Based Exchange: Forbidden in Ohio

On February 19, Governor Kasich indicated to Bloomberg that he was “open to” establishing an Ohio-based ACA exchange. Such an exchange would cost Ohioans millions, while spending billions to subsidize purchases of health insurance pursuant to the ACA, and imposing the otherwise-forbidden ACA employer mandate on Ohio employers.

However, with the overwhelming passage of Issue 3 in November of 2011, Ohioans created a likely-insurmountable legal hurdle to state officials implementing Obamacare in Ohio through a state-based ACA exchange.

As the 1851 Center explained in March of 2012, Ohio’s Health Care Freedom Amendment forbids the state from establishing a state-based ACA exchange. Under the Amendment, the state of Ohio may not (1) indirectly compel participation in a health care system; (2) prohibit the purchase or sale of health insurance; or (3) impose a penalty for the sale or purchase of health insurance.

Under implementation of an ACA exchange, the state would be voluntarily using state resources to attempt to do all three. For example:

  • Though establishing an exchange, Ohio would be voluntarily assuming responsibility for enforcing the individual mandate, volunteering to use state officials and resources to turn in those who may not have “minimum essential coverage” to the federal government as defined by HHS. This indirectly compels Ohioans to participate in ACA, in violation of Section (A) of the Health Care Freedom Amendment.
  • Though establishing an exchange, Ohio would be imposing the “employer mandate,” a penalty of up to $3,000 per employee that must otherwise be paid to the federal government by Ohio employers who do not provide government-approved health care insurance for their employees.

In November of 2012, Cato Institute health care policy expert Michael Cannon echoed the 1851 Center’s findings:

“operating an Obamacare exchange would violate the state’s constitution . . . In order to operate an exchange, Ohio employees would have to determine eligibility for ObamaCare’s “premium assistance tax credits.” Those tax credits trigger penalties against employers (under the employer mandate) and residents (under the individual mandate). In addition, Ohio employees would have to determine whether employers’ health benefits are “affordable.” A negative determination results in fines against the employer. These are key functions of an exchange. Ergo, if Ohio passes a law establishing an exchange, then that law would violate the state’s constitution by indirectly compelling employers and individual residents to participate in a health care system. That sort of law seems precisely what Section 21 exists to prevent.”

Case Western law professor Jonathan Adler concurred, responding to news that Governor Kasich may attempt a state-based exchange to salvage the ACA in Ohio by explaining “tax credit eligibility triggers employer mandate and slides more people to individual mandate penalty.”

This would also be true in, at minimum, all states with a Health Care Freedom Amendment or Act (including Alabama, Arizona, Georgia, Idaho, Indiana, Kansas, Louisiana, Missouri, Montana, Oklahoma, Tennessee, Utah, and Virginia).

Without State-Based Exchanges in Ohio and Other States: Collapse or Reform

Without state-based exchanges, Obamacare will be significantly more difficult to enforce, dramatically enhancing the probability that the Act will be “re-opened” to debate amendment or repeal.

In the interim, Ohioans who sign up through the federal Obamacare exchange would lose “premium assistance,” a taxpayer-funded subsidy/tax credit to individuals that masks the true increased costs of health insurance premiums imposed by Obamacare. Without tax credits to support the ACA’s inflated insurance costs, there may be some initial disarray for the roughly 234,000 Ohioans who have purchased subsidized health insurance through the federal exchange. (These are Ohioans who are not eligible for Medicaid, with incomes between 100 and 400 percent of the Federal Poverty Level.)

However, this federal spending will be blocked, and the clamor for repeal will be immediate if states refuse to establish exchanges. (This is because Americans would be threatened with experiencing the full effect of the cost increases imposed by Obamacare.)

Further, Ohio employers will be exempt from the damaging employer mandate.

According to 1851 Center Director Maurice Thompson, “Any state that creates an Obamacare exchange is ultimately voluntarily choosing to enforce Obamacare and its mandates and restrictions on freedom of choice, while simultaneously reducing the chance that Obamacare will repealed or rewritten.”

Thompson suggests that legal action would be appropriate to stop the exchange, should Governor Kasich move to establish one, and that the 1851 Center is prepared to take it.

Read the entire report: Does Ohio’s Health Care Freedom Amendment Prohibit it from Imposing an Obamacare Exchange?

 

March 4, 2015: The Plain Dealer: Obamacare case before Supreme Court could lead to chaos, advocates say

March 3, 2015: 610 WTVN: Maurice Thompson’s radio interview with Joel Riley [AUDIO]

March 3, 2015: WCBE 90.5 FM: Federal Court Case On ACA Subsidies Could Affect 235,000 Ohioans

March 3, 2015: Fierce Health Payer: Past amendments could prohibit states from establishing exchanges

March 2, 2015: National Journal: Those Obamacare Nullification Amendments Could Make a Big Comeback Post-SCOTUS

Victory for Parental Rights: State Agrees to End Stand-Off with Amish Family over Forced Health Care

Official who had sought to take family’s daughter from home and force chemotherapy on her, despite parent’s earnest objections and Health Care Freedom Amendment, resigns as guardian

Family will continue to pursue alternative treatment

amishColumbus, OH – The 1851 Center for Constitutional Law today accepted the Resignation as Limited Guardian of a state official attempting to, on behalf of the State and Akron Children’s Hospital, force chemotherapy on ten-year-old Sarah Hershberger.

While the resignation still requires the signature of Probate Judge Kevin Dunn, Judge Dunn is expected to approve the resignation sometime next week, effectively ending the two-month stand-off with Sarah’s parents, Andy and Anna Hershberger, who, concerned that the chemotherapy was killing their daughter, sought the right to first try a less invasive alternative treatment that the hospital did not provide.

Andy and Anna, after the Court’s order, left the country to pursue an alternative treatment and prevent Sarah from being taken from them. The family reports that Sarah has responded well to the alternative treatment, the cancer is receding, and she is in excellent physical condition.

“We made it clear to our opponents that they were in for a protracted battle over fundamental principles and constitutional rights; and that on each, they were on the wrong side,” said Maurice Thompson, Executive Director of the 1851 Center.

“The Judge’s approval of this Resignation will pave the way for the family’s return home, which will allow Sarah to receive the family’s preferred treatment under the best possible conditions,” continued Thompson. “We hope that this Resignation also seals one of the darkest moments for parental rights and health care freedom in the State’s history: a court ordering a little girl to be ripped away from her loving and competent parents, and forced to submit to procedures that could kill or sterilize her, simply because her parents sought to first pursue a less invasive treatment option – – one the hospital disagreed with because it did not itself provide it.”

On November 19, the 1851 Center announced its representation of the Hershbergers, maintaining:

  • Section 21, Article I of the Ohio Constitution, the Ohio Healthcare Freedom Amendment passed by 67 percent of Ohio voters in 2011 prohibits the compulsion of any person “to participate in a health care system.”
  • Even before Section 21, the Ohio Supreme Court held that the Ohio Constitution ensures “personal security, bodily integrity, and autonomy,” and therefore “[t]he right to refuse medical treatment” is amongst the “rights inherent in every individual.”
  • The U.S Supreme Court has repeatedly confirmed the Fourteenth Amendment to the United States Constitution clearly provides protection to parents in the “care, custody, and control” of their children, including the right “to direct the upbringing . . . of children under their control.”
  • The U.S. Supreme Court has also ruled that the “primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition,” and “[t]he statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.”

The litigation began when the Hershbergers removed their daughter from Akron Children’s Hospital in July, in favor of a less invasive alternative treatment, after it appeared as though chemotherapy itself was a greater threat to her than her mild form of cancer. The Hospital then moved in court to take Sarah from the Hershbergers and force treatment in July.

The hospital’s move came only after county social services officials found the Hershbergers to be quality parents, and, and despite hospital demands, refused to take Sarah from the family. The Medina County probate court found that the Hershbergers were model parents, explaining “there is no evidence the parents are unfit or unstable,” and “there is not a scintilla of evidence showing the parents are unfit.”

However, the Appellate Court used an obscure Ohio statute intended to address child abuse and neglect to order Sara to be taken from the home and forced to undergo chemotherapy.

The Court made this ruling even though Sarah’s mild form of cancer is a type that can and is being treated without chemotherapy, and despite conceding that chemotherapy may well cause loss of hair, infections, infertility, cardiovascular disease, damage to internal organs, an increased risk of contracting other cancers, and even death.

The case remains pending on a jurisdictional motion before the Ohio Supreme Court and on appeal to the Ninth District; however those appeals are likely to be mooted by the Judge’s approval of the Resignation.

 


October 12, 2015: Medical Daily: Amish Family Wins Chemotherapy Case; Daughter No Longer Forced To Receive Leukemia Treatment

October 9, 2015: Business Insider: Court battle over Amish girl’s cancer treatment ends

October 2, 2015: Medina Gazette: Attorney: Amish girl who fled country to avoid chemo is cancer-free

March 11, 2014: Reason.com: Amish vs. the Courts: Family Speaks Out on Fleeing the U.S. to Save Daughter from Court-Mandated Chemo [VIDEO]

February 14, 2014: Medina Gazette: Judge accepts guardian’s resignation in Amish medical case

February 8, 2014: 6 ABC Action News: Ohio parents fight law over girl’s forced chemo

January 21, 2014: ABC News via Associated Press: Amish Family: Forced Chemo Order Violates Rights

January 21, 2014: Medina Gazette: Attorney: Court had no authority to force Amish girl’s cancer treatments

December 27, 2013: Daily Mail: Court was wrong to appoint guardian to force Amish girl to have chemotherapy, family says

December 26, 2013: Washington Post via Associated Press: Ohio Amish argue against guardian in chemo case

December 6, 2013: Reason.com: Amish Girl in Ohio Won’t Be Forced to Have Chemotherapy

December 3, 2013: Natural News Radio: Joni Abbott hosts with guests Donna Navarro and Hershberger family attorney Maurice Thompson

November 29, 2013: New York Daily News: Amish girl in hiding to avoid Ohio court’s ruling on her cancer treatment options

November 28, 2013: Good Morning America: Amish Girl With Leukemia, Family Flees US to Avoid Chemotherapy

Lawsuit: Ohio’s Attempted Medicaid Expansion Unlawful

Governor’s end-run around the Ohio General Assembly violates the separation of powers, Controlling Board’s vote impermissibly contradicts General Assembly intent

medicaid

Maurice Thompson answers questions following Ohio expansion of Medicaid

Columbus, OH – The 1851 Center for Constitutional Law late yesterday moved in the Ohio Supreme Court, on behalf of six veteran Ohio legislators and two of Ohio’s largest pro-life organizations, to stop Ohio’s executive branch from expanding Affordable Care Act (“Obamacare”) Medicaid spending without legislative approval.

The legal action is filed on behalf of State Representatives Matt Lynch, Ron Young, Andy Thompson, Ron Maag, John Becker, and Ron Hood, and Cleveland Right to Life and Right to Life of Greater Cincinnati. These representatives and groups combine to represent nearly 1 million Ohioans.

The action asserts that in accepting jurisdiction over and passing the Governor’s proposed Medicaid spending, the Controlling Board exceeded its legal authority by acting inconsistently with the intent of the Ohio General Assembly. Specifically:

 

  • R.C. 127.17 states: “The Controlling Board shall take no action which does not carry out the legislative intent of the general assembly regarding program goals and levels of support of state agencies as expressed in the prevailing appropriation acts of the general assembly.”

 

  • The Ohio General Assembly first removed Governor Kasich’s proposed expansion of Medicaid spending from the state budget bill, and then inserted a prohibition against the expansion and spending.

 

  • Article II of the Ohio Constitution requires that the legislature, rather than administrative boards such as the Controlling Board, make major policy decisions.

 

  • In a 1980 challenge to the Controlling Board, the Ohio Supreme Court held that the Controlling Board’s authority is only constitutional because it must adhere to the intentions of the General Assembly, and because of “the availability of mandamus relief” through the High Court.

 

“Many competent individuals make strong arguments against Medicaid Expansion on policy grounds. Success in our lawsuit, however, will not prohibit changes to Medicaid through legitimate means. Our lawsuit stands for the simple proposition that neither this Governor nor any other is a king,” said Maurice Thompson, Executive Director of the 1851 Center.

“For government to be limited, the making of transformational public policy requires the assent of the Ohio General Assembly, and cannot be done through administrative overreach. This occasion requires Ohioans to draw a line in the sand and affirm that we’d rather not bring Washington D.C.- style decision-making to Ohio.”

The Supreme Court of the United States, in its seminal decision last July in National Federation of Independent Business v. Sebelius, explained that the spending expansion transforms a state’s Medicaid program from “a program to care for the neediest among us” to “an element of a comprehensive national plan to provide universal health insurance coverage” that “dramatically increases state obligations under Medicaid,” and is “an attempt to foist an entirely new health care system upon the States.”

Read the Complaint HERE.

 


October 23, 2013: Dayton Business Journal: Ohio Medicaid expansion gets legal challenge

October 23, 2013: WOSU NPR 89.7: Activists, Lawmakers Bring Promised Lawsuit Over Medicaid

October 22, 2013: Cincinnati.com: SW Ohio conservatives file suit to stop Medicaid expansion

October 22, 2013: Bloomberg: Ohio Medicaid Expansion Plan Challenged in Lawsuit

October 21, 2013: New York Times: Medicaid Expansion Is Set for Ohioans

October 21, 2013: Columbus Dispatch: Medicaid-expansion opponents plan to sue Kasich administration

October 21, 2013: 60 Seconds Ohio: Maurice Thompson answers questions following Ohio expansion of Medicaid [VIDEO]

October 14, 2013: NBC 4: Controlling Board Medicaid Maneuver May Face Legal Challenge [VIDEO]

Ohio Constitution Prohibits Legislators from Enacting State Insurance Mandates

Legal center advises Ohio legislators that mandating health treatments and benefits violates Ohio’s Health Care Freedom Amendment

administrativelyColumbus, OH – The 1851 Center for Constitutional Law today emphasized to Ohio’s state senators and representatives that the Ohio Health Care Freedom Amendment, added to Ohio’s Bill of Rights in late 2011, prohibits the state from mandating that Ohioans health insurance purchases include new previously-un-mandated benefits and services. The 1851 Center is the public interest law firm that drafted the Amendment and represents its advocates and sponsors.

The 1851 Center legal memorandum (“A Policymaker’s Guide to Following the Health Care Freedom Amendment“) comes in response to recent news of the Kasich Administration’s purported executive action attempting to mandate that all Ohioans purchase autism-related coverage. The memorandum observes that while the Governor’s action — simply a letter to the Obama Administration recommending that it impose autism coverage on Ohioans — may not be a forbidden “law or rule,” any state legislation will indeed violate the Amendment.

Specifically, the memorandum explains that any state-based insurance mandate is highly likely to violate all three substantive provisions of the Amendment, while also transgressing its spirit and purpose:

  • Most mandates will compel participation in, through purchase of coverage for, a “health care system,” as that phrase is broadly defined in the Amendment. (Division (A) of Section 21, Article I).
  • Mandates necessarily prohibit the purchase of insurance coverage without the newly-mandated coverage. (Division (B) of Section 21, Article I).
  • Mandates impermissibly sanction those who sell or purchase private health care insurance without also purchasing the newly-mandated coverage. (Division (C) of Section 21, Article I).

“State-based health insurance mandates are one of the primary drivers of the increased cost of health insurance premiums in Ohio,” said Maurice Thompson, Executive Director of the 1851 Center. “ We drafted the Health Care Freedom Amendment keenly aware of this problem, and with the full intention of stopping this practice, while further ensuring that the State of Ohio does not compound the challenges presented by Obamacare’s health care mandates and penalties.”

The memorandum further notes that the official “arguments for” the Amendment, approved by the Ohio Secretary of State and which appeared on Ohioans’ ballots, specified that the Amendment prohibited state government from forcing Ohioans “to pay more to upgrade your existing health insurance to meet government requirements,” and would “[p]rohibit government from forcing you into government insurance or medical treatment you don’t want.”

Finally, the memorandum observes that “[i]f the purpose behind the mandate is to provide access for those who cannot afford certain types of health treatments or products, then the mandate is a poorly-adapted policy solution,” because mandates conceal state spending and constitute a hidden tax, impose a one-size-fits all system in a world of varying health care needs, do not provide benefits on the basis of need, and impose greater hardships on small business and individuals than others.

Added Thompson, “although many of Ohio’s elected leaders opposed the federal health care mandate and supported our Amendment, six individual health insurance mandates were introduced during Ohio’s last legislative session. As the legislature begins a new session, it is our hope that clarifying the application of the Health Care Freedom Amendment to state mandates may avert unconstitutional legislation and subsequent litigation.”

Read “A Policymaker’s Guide to Following the Health Care Freedom Amendment” HERE.

Learn more about the Health Care Freedom Amendment HERE.

Listen to Maurice Thompson discuss the trouble with state health insurance mandates

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January 26, 2013: Toledo Watch: Autism coverage plan may violate Ohio Constitution’s newest amendment

January 14, 2013: Brian Thomas Morning Show on 55KRC Radio:

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January 10, 2013: Heartland.org: Without State Exchange, Ohio Small Businesses Have Standing to Sue IRS

January 9, 2013: NBC4i: Gov. Kasich Signs Directive Mandating Coverage For Autism [VIDEO]

1851 Center Applauds Kasich Agreement on Obamacare Exchange

flagstethoscope-300x200Columbus, OH – The 1851 Center for Constitutional Law today registered its approval, on behalf of conservative and libertarian leaders throughout Ohio, of the Kasich Administration’s agreement to refuse to implement a “state-run” Obamacare exchange.

The Administration’s agreement is significant for several reasons:

  • The agreement averts litigation that would have pitted Section 21, Article I of the Ohio Constitution, the 1851 Center for Constitutional Law, and grassroots backers of the Ohio Health Care Freedom Amendment against the administration (Division (A) of the Health Care Freedom Amendment prohibits the “employer mandate” that a state exchange would have attempted to impose).
  • The agreement means that Ohio will not impose the “employer mandate,” a penalty of up to $3,000 per employee that must be otherwise paid to the federal government by Ohio employers who do not provide government-approved health care insurance for their employees.
  • The agreement means that Ohio will not provide Obamacare “premium assistance,” a taxpayer-funded subsidy to individuals that masks the true increased costs of health insurance premiums imposed by Obamacare (the Administration estimates that Ohioans’ health insurance premiums may increase by as much as 85 percent).
  • The agreement means that Ohio will not assist the federal government in enforcing Obamacare’s “individual mandate.”
  • The agreement means that Obamacare will be significantly more difficult to enforce, dramatically enhancing the probability that the Act will be “re-opened” to debate, amendment or repeal.

While the issue appears esoteric, the impact of the Administration’s decision cannot be underestimated. The Act’s “employer mandate” taxes employers up to $3,000 per employee if they fail to offer required health benefits. But that tax applies only if employers receive tax credits or subsidies to purchase a health plan through a state-run insurance exchange.

The federal government might create exchanges in states that decline to creat e state-run exchanges, 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 on employers. The Obama Administration appears intent on using the Internal Revenue Service to impose the employer mandate, but there is no legal authority to support doing so, and the regulation attempting to do so is unlikely to be upheld.

Further, it is highly likely that Obamacare will collapse without the employer mandate and tax credits, just as it would have without the individual mandate.

In addition to inviting Obamacare into Ohioans’ lives, the Kasich Administration acknowledges that a state-run exchange would cost about $43 million annually, versus about $1.6 million to participate in the federal exchange.

“We are pleased that the Kasich Administration heeded the clear effect of the Health Care Freedom Amendment (passed in 2011), which prohibited Ohio from enacting a state based Obamacare exchange,” said Maurice Thompson, Executive Director of the 1851 Center. “We can now turn our attention away from the Kasich Administration, and begin to prepare litigation that ensures that Ohio employers will not be subjected to the $3,000 per employee fine, and that Obamacare ultimately collapses under the weight of its own legal infirmities.”

Read the 1851 Center’s explanation of why a state-run Obamacare exchange is bad policy, and violates the Ohio Constitution, here.


November 16, 2012: WKSU NPR: Kasich rejects health-insurance exchanges

November 16, 2012: Ohio Liberty Coalition: Governor Kasich confirms that creation of Ohio’s Obamacare exchange will be left to the feds

November 19, 2012: WYSO Ohio Public Radio: Kasich Tells Feds Ohio Won’t Set Up Its Own Health Care Exchange

November 19, 2012: Insurance News Net: Ohio: No State Health Care Exchange

November 20, 2012: Ohio Watchdog: OH: Step 2 — Sue IRS over Obamacare rule

November 21, 2012: Watchdog.com: VA: NFIB, Cuccinelli weigh Obamacare exchange costs; could Virginia get a pass?

November 23, 2012: Heartlander: Kasich Decides Against Obamacare Implementation

January 10, 2013: Heartland.org: Without State Exchange, Ohio Small Businesses Have Standing to Sue IRS

Obamacare: The Way Forward in Ohio

Friends,

You, like me, were no doubt inundated with punditry on the fallout of the Obamacare ruling last Thursday and Friday.

We didn’t follow suit. I did not found the 1851 Center to gab. We exist to advance liberty and limit government, whether we’re taking the lead, or simply supporting you.

Of course, we’re not enamored with the Chief Justice’s placement of his image, or “the institute of the Court,” above adherence to applicable law. And we do think there’s a lesson for you in that by squandering the opportunity to place a constitutionalist on the Court, George W. Bush handed over the matches that Barack Obama is using to burn down your rights. Meanwhile, we’re not enamored with the prospect that the federal government may force you to buy any commercial product, and impose a tax if you refuse.

But you’ve heard plenty about the decision by now.

So now that the smoke has cleared, let’s get back to business.

First things first: I’ve heard some rumblings from tea party soothsayers to our always-shaky Attorney General that the Ohio Health Care Freedom Amendment has now lost its meaning.

The Status of Ohio’s Health Care Freedom Amendment (“Issue 3”)

As I’ve said many times in the past, if you supported the Health Care Freedom Amendment on the sole grounds that it would, without more, influence the Supreme Court’s interpretation of federal power, then you were reaching. But you were also partially correct: 5 Justices ruled that the individual mandate was not “proper,” as required by the Necessary and Proper Clause, because it transgresses principles of state sovereignty. To the extent that the Amendment could have influenced the Court’s reasoning, it did its job – – it was Justice Roberts who did not do his.

However, this was, at best, only a minor purpose of the Amendment. As to the others, the Amendment remains fully effective. Let me remind you of those purposes, by quoting from campaign materials that were distributed early in 2011:

Passage of the Ohio Health Care Freedom Amendment necessarily provides protections that will be effective as against state and local government. This means that Ohio and its local governments would be prohibited from enacting health care and health insurance mandates, a single-payer system, or any regulatory provisions equivalent to health care systems in Massachusetts, Vermont, Canada, or the United Kingdom.

Moreover, even in the face of a valid federal health insurance mandate, Ohio governments would be prohibited from enacting regulations above and beyond the federal baseline.

Finally, the Amendment prohibits Ohio state and local governments from enacting any regulation that has the effect of significantly impeding health care or health care insurance choices, or significantly raising costs of health care or health care insurance.

Passage of the Ohio Health Care Freedom Amendment has the capacity to protect Ohioans from the requirements of the Patient Protection and Affordable Care Act. By placing health care freedom in the Ohio Constitution’s Bill of Rights, the Ohio Health Care Freedom Amendment creates a fundamental constitutional right that Ohioans can use to defend themselves from invasive health care regulations, including the PPACA.

The Ohio Health Care Freedom Amendment could be influenced by outcomes in pending litigation challenging the constitutionality of the Patient Protection and Affordable Care act. If the mandate is found to be a valid exercise of the Commerce Clause, Necessary and Proper Clause, or taxing power, litigation will ensue under the Ohio Health Care Freedom Amendment to determine whether Ohioans have a fundamental right to be free from the strictures of health care mandates. Important protections in the Ohio Health Care Freedom Amendment, other than those related to the mandating of health insurance are not affected by current PPACA litigation.

As you can see the Amendment leaves us with many tools to preserve health care freedom in Ohio. And the Supreme Court decision actually provides additional tools to limit government. And with your help, we intend to use them.

Here’s the path forward for stopping Obamcare in Ohio:

Step 1: Stop Ohio from Implementing a state-based Obamacare Exchange.

Here’s the bottom line. Obamacare is unsustainable if states force it to operate through federal exchanges, which are considerably “weaker” than state exchanges.

There’s no easy way to put this, but Case Western law professor Jonathan Adler and Cato scholar Michael Cannon do an admirable job:

“The Act’s ’employer mandate’ taxes employers up to $3,000 per employee if they fail to offer required health benefits. But that tax kicks in only if their employees receive tax credits or subsidies to purchase a health plan through a state-run insurance ‘exchange.’ . . . 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.”

This law will collapse without the employer mandate and tax credits, just as it would have without the individual mandate.

Louisiana Governor Bobby Jindal knows this. Just one day after the decision, he reiterated that his state would steer clear of a state exchange: “Here in Louisiana we have not applied for the grants, we have not accepted many of these dollars, we’re not implementing the exchanges,” Jindal said. “We don’t think it makes any sense to implement Obamacare in Louisiana. We’re going to do what we can to fight it.”

Will John Kasich muster this courage? It hasn’t happened yet.

But here’s some good news: we’ve consistently made this argument to the administration since it accepted the federal grant to create a state-run exchange. And the administration hasn’t moved on the issue since.

In fact, Lt. Gov. Mary Taylor told reporters Thursday that the state is leaning against developing an Ohio exchange, relying instead on whatever system is implemented by the federal government: “At this point, the governor and I don’t see how it is in the best interest of Ohioans to have a state-run exchange,” Taylor said. “Quite frankly, we don’t even see where the additional money would come from in order for us to run that exchange.”

In addition to inviting Obamacare into Ohioans’ lives, a state-run exchange, the administration acknowledges, would cost about $43 million annually, versus about $1.6 million to plug into the federal exchange.

And guess who would pay for that? You.

Here’s some additional good news. If the Supreme Court’s ruling were to cause the Administration to change course, we have the trump card: the state constitution. We drafted the Ohio Health Care Freedom Amendment with full knowledge of the need to stop Ohio from implementing a state exchange.

Remember, under the Amendment, no state law can (A) indirectly compel any person, employer, or health care provider to participate in a health care system; (B) prohibit the purchase or sale of health care or health insurance; or (C) impose a penalty or fine for the sale or purchase of health care or health insurance. And no state can implement an Obamacare exchange without doing these exact things.

So if you helped make the Health Care Freedom Amendment happen, you’ve done your job.

But the left is banging the drums of war, with former Governor (and now Obama co-chairman) Ted Strickland and Progress Ohio asserting “It is simply time to enact the law and end the politics,” and “[Taylor] needs to stop talking and go to work and pull together the kind of efforts that’s going to be necessary to get these exchanges up and running.” And some weak-kneed Senate Republicans are already caving as well.

So here’s the next step: Stop the Kasich Administration from rubber-stamping a state-run exchange. That’s a political job – – your job.

And my job is to defeat them in court if you’re unsuccessful.

Either way: there will be no state-run Obamacare exchange in Ohio. And this alone will hasten the Act’s demise.

Read the 1851 Center’s explanation of why a state-run Obamacare exchange is bad policy, and violates the Ohio Constitution, here.

Step 2: Stop Medicaid Expansion in Ohio.

Are you concerned about federal spending? Want to hold on to the money you earn? This is your chance to make a difference.

First, Ohio just argued — AND WON — the right to not be coerced by Obamacare to expand Medicaid coverage at state taxpayer expense. This is the part of the case where the Supreme Court actually ruled in our favor. Why would we argue for this autonomy, only to squander it, in the name of the welfare state?

Second, half of Obamacare’s trillions in new federal spending comes through Medicaid expansion. Refusal to expand Medicaid blocks half of the law’s new entitlement spending.

Yet Kasich administration officials said they do not know if they will expand the Medicaid program yet.

This shouldn’t even be a close call.

Obamacare authorizes states to provide free cradle-to-grave health care, using your wallet, for your neighbor making as much as $30,650 per year (this is above the state’s median salary, by the way).

If Ohio were to go ahead and expand Medicaid, Ohio’s portion of the costs would soon balloon to $675 million per year covering roughly another 700,000 residents each year (perspective: that’s either a 5 percent tax hike or reduction in other services).

Think your taxes are too high now? This is your chance to draw a line in the sand.

Step 3: Mount a rights-based challenge to the mandate.

Amongst all of the hand-wringing over the legal conclusion that the federal government has the power to impose a mandate through the back door, something important has continuously been lost: even if the Government has the power, there may be a constitutionally-protected right to be free from such a mandate.

Just because the taxing power allows for the taxing of flag burning, for instance, doesn’t mean the First Amendment doesn’t protect the right and defeat the otherwise lawful tax.

Courts have yet to address the Right to Privacy: The U.S. Supreme Court has held that medical records are constitutionally-protected from disclosure, yet the requirement to contract for health insurers necessarily compels a citizen to divulge private and personal records, along with blood and urine samples, to a private insurance corporation, or pay a fine.

Courts have yet to address Freedom of Association: The Supreme Court holds that “Freedom of Association. . . plainly presupposes the freedom not to associate,” yet those without insurance are forced to contract with insurance private insurance corporations.

And most importantly, 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.

Let me close with this:

I am assuming that you, like me, never want any Ohioan to be led away in handcuffs for refuses to purchase federal-government-defined health insurance.

Moreover, I’m assuming that you’ve already rejected the paternalistic philosophy that leads some in government to believe that they know what you must buy even more than you do. And I’m assuming that you reject the collectivist underpinnings of the notion that you should be forced to purchase, as a taxpayer, the health care of your bad-habited neighbor who makes about the same as you do.

For those of us who so reject paternalism and collectivism, let me ask you this:

Are you just human cattle, being fattened up for the benefits of big government? Are you just plants in a garden, who can’t flourish without the master government gardener? Is the federal government, in the name of “public health,” entitled to a first mortgage over your life?

Or are you born free, with a right to run your own life that no political majority may take away?

You should have the power to make these choices. That’s what it means to be human and adult, much less American.

We’ve all got a lot of work to do. The 1851 Center will support you in this work, and we hope that you’ll support us as well.

In Liberty,

Maurice Thompson
Executive Director
1851 Center for Constitutional Law

Is an Obamacare Exchange Legal in Ohio?

This 1851 Center analysis explains how the Ohio Health Care Freedom Amendment, Section 21 of Ohio’s Bill of Rights, forbids Ohio officials from imposing Obamacare health care exchanges on Ohioans. The document also explores reasons that such exchanges are an unwise policy choice

Healthcare Freedom Amendment Discussion

Maurice Thompson discussed Issue 3 (The Ohio Healthcare Freedom Amendment) with Empower U, which is an initiative of several Tea Party groups, built to help educate people about limited government and fiscal responsibility.

Ohioans Submit Brief to U.S. Supreme Court Challenging Constitutionality of Individual Mandate

The 1851 Center for Constitutional Law has submitted to the United States Supreme Court a “friend of the court” brief asserting that the Patient Protection and Affordable Care Act’s individual mandate is unconstitutional.  The brief highlights for the High Court Ohioans’ placement of the Ohio Health Care Freedom Amendment (“Issue 3”) in Ohio’s Bill of Rights, and its role in the Court’s analysis of whether the mandate withstands constitutional scrutiny.

The individual health insurance mandate, described as a “minimum essential coverage requirement” in the PPACA, attempts to require each citizen of the United States to purchase a qualifying heath insurance policy that, thus far, must cover items ranging from substance abuse and mental health coverage to maternity care.  Through requiring these coverages and others, the mandate is expected to drive up costs of health insurance premiums nationwide.

The 1851 Center’s Brief recognizes that because the mandate is not a regulation of commerce, per se, it must be “necessary and proper” for carrying into execution Congressional Commerce Clause power.  The Brief then chronicles legal principles and factual background demonstrating that, in light of efforts in Ohio and elsewhere, the mandate is not “proper,” as the Court has historically understood that term.

Specifically, the brief asserts:

  • The Constitution is animated by federalism, and because its purpose is to protect liberty, the mandate violates the “letter and spirit” of the constitution, insofar as it may displace state protection of a fundamental right.
  • Freedom from compulsion to purchase government-defined health insurance is the type of liberty states must be permitted to protect.
  • The Ninth and Fourteenth Amendments protect, from Necessary and Proper Clause power, rights specifically enumerated under state law.
  • The Necessary and Proper Clause has never before been used to displace a state constitutional provision protecting liberty.
  • The mandate forces 49 states to adhere to a policy only heretofore adopted by Massachusetts, even though that policy has been vigorously debated in each state.
  • States may protect liberty above and beyond the baseline protections afforded by the federal Constitution.

Ohio is one of three states with constitutional prohibitions against forced purchase of health care insurance.  Ten other states maintain statutory prohibitions, and 36 of the remaining 39 states have deliberately abstained from enacting individual health insurance mandates, despite debate over the policy since California first proposed such a mandate in 1939.

The Ohio Amendment, approved by 66 percent of the vote, over 2.2 million voters, added a 21st Section Ohio’s Bill of Rights “to preserve the freedom of Ohioans to choose their health care and health care coverage.”  In approving the amendments Ohioans specifically found “The freedom to not be forced to purchase government-defined private health insurance is a fundamental right.”

“One of the purposes of enacting the Health Care Freedom Amendment was not only protect Ohioans’ health care freedom from state and local government, but also to place Ohioans in the nation’s strongest position to challenge invasive elements of the Patient Protection and Affordable Care Act,” said Maurice Thompson, Executive Director of the 1851 Center for Constitutional Law.

“The 1851 Center’s Brief is a reminder, like the Ohio Health Care Freedom Amendment, of our view, and the founders’ view, that government exists to secure rights, rather than to take from some so as to provide benefits, amenities, and comfort to others,” added Thompson.  “We thought it important to share this view with the Court, along with a reminder of the impropriety of the federal government eradicating rights that the states have essentially ‘federalized’ through the Ninth and Fourteenth Amendments, as it decides the extent of our liberties.”

The Ohio Health Care Freedom Amendment was drafted, initiated, and defended by the 1851 Center for Constitutional Law.

Read the Amicus Brief here.