Healthcare Reform Challenge Can Proceed, Says Ohio Federal Judge

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http://www.medscape.com/viewarticle/733091

November 23, 2010 — In the stew of federal lawsuits across the country challenging the constitutionality of the new healthcare reform law, another hot bubble has popped, this time in Akron, Ohio.

Yesterday, US District Judge David Dowd Jr. dismissed 3 counts, or arguments, of a suit filed against the Affordable Care Act (ACA), but spared 1 count central to the other lawsuits. In that count, the plaintiffs contend that the ACA's mandate for individuals to obtain insurance coverage or pay a penalty exceeds the power given to the US Congress to regulate interstate commerce.

The plaintiffs in the case are a politically conservative group called the US Citizens Association and 3 of its members.

The judge's decision to keep their suit alive came in response to a motion by the Obama administration to dismiss it on all counts. Now both sides are free to ask Dowd to issue a summary judgment on the remaining count without proceeding to trial.

The litigation in the Ohio court numbers among more than a dozen federal lawsuits that call the ACA unconstitutional. Federal judges in Florida and Virginia have denied motions to dismiss such lawsuits in their courts, in contrast to a federal judge in California who threw one out. A lawsuit filed in a Michigan federal court by the Thomas More Law Center, a Christian legal defense organization, has gone further than any other; ruling on the merits of the case last month, US District Judge George Steeh affirmed the right of the US Congress to mandate individual insurance coverage under the constitution's commerce clause.

Steeh agreed with the Obama administration's contention that the individual mandate addresses the problem of people voluntarily forgoing insurance. Besides shrinking the risk pool and causing premiums to increase for everyone else, these individuals often receive free care that leads to insidious cost-shifting and a disrupted healthcare marketplace, according to the Obama administration. The Thomas More Legal Center has appealed the decision.

Legal experts predict that the litigation snaking its way through federal district and appellate courts will eventually end up before the US Supreme Court.

In his ruling yesterday, Judge Dowd stated that the plaintiff's commerce-clause argument "required additional consideration." At the same time, Dowd said he did not intend to write a lengthy opinion because his decision "will, in all likelihood, be without relevance by the time this case reaches the Supreme Court."

"Ideological Beliefs Against the Effectiveness of Traditional Medicine"

While preserving the most critical count in the anti-ACA lawsuit, Dowd dismissed 3 other counts alleging that the law deprived the plaintiffs of due process, violated their privacy, and infringed on their "freedom of expressive and intimate association." The last count is perhaps the most novel seen in the various federal lawsuits. The US Citizens Association maintains that the law will force its members to associate with health insurers and network medical providers they wish to avoid and hinder them from associating with clinicians who have nothing to do with insurers but who instead accept direct payment from patients.

This contested freedom to associate involves a preference for practitioners of nontraditional medicine.

"Some of the uninsured members (of the association) object to the purchase of private health insurance because they hold ideological beliefs against the effectiveness of traditional medicine, in favor of alternative and integrative medicine," the plaintiffs state in 1 court filing. They note that health insurers do not cover the care rendered by these nontraditional clinicians, a point repeated in an affidavit by plaintiff Jim Grapek.

"Any money I spend on government-compelled healthcare takes away from money I could spend on holistic, integrative, natural, and alternative medicine of my choosing," stated Grapek. "Private insurance plans do not cover the expenses for the kind of care I prefer."

In its motion to dismiss, the Obama administration countered that individuals will still be able to see any clinician they want under the ACA, regardless of whether he or she accepts insurance payments.

Dowd concluded that the freedom-to-associate argument failed to meet a legal plausibility standard and therefore could not survive the defendant's motion to dismiss it.