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Health Freedom Watch
April 2010


Health-Reform Update

The May, June, and July issues of Health Freedom Watch will thoroughly examine how the new health-insurance mandate will affect Americans’ freedom and privacy.  (The Senate bill became Pubic Law No. 111-148 on March 23 and the reconciliation bill, which modified the Senate bill, became Public Law No. 111-152 on March 30.)  Meanwhile, a number of lawsuits have already been filed challenging the constitutionality of the law.  Two are cited below.

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Virginia Attorney General Challenges Constitutionality of Insurance Mandate

Virginia Attorney General Kenneth Cuccinelli filed a lawsuit on March 23 challenging the constitutionality of the federal health-insurance mandate, claiming it exceeds Congress’s enumerated powers. 

The complaint points out that the Patient Protection and Affordable Care Act (PPACA) requires a majority of Virginians to purchase health insurance or face a civil penalty after December 31, 2013.  Meanwhile, the Virginia legislature enacted a law that prohibits mandatory health insurance.  The Virginia Code was amended as follows:

"§ 38.2-3430.1:1. Health insurance coverage not required: No resident of this Commonwealth, regardless of whether he has or is eligible for health insurance coverage under any policy or program provided by or through his employer, or a plan sponsored by the Commonwealth or the federal government, shall be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the Department of Social Services where an individual is named a party in a judicial or administrative proceeding. No provision of this title shall render a resident of this Commonwealth liable for any penalty, assessment, fee, or fine as a result of his failure to procure or obtain health insurance coverage. This section shall not apply to individuals voluntarily applying for coverage under a state-administered program pursuant to Title XIX or Title XXI of the Social Security Act. This section shall not apply to students being required by an institution of higher education to obtain and maintain health insurance as a condition of enrollment. Nothing herein shall impair the rights of persons to privately contract for health insurance for family members or former family members."

The lawsuit claims that “Although the federal mandate does not take effect for several years, PPACA imposes immediate and continuing burdens on Virginia and its citizens.  The collision between the state and federal schemes also creates an immediate, actual controversy involving antagonistic assertions of right.”

Moreover, the lawsuit points out that even the U.S. Senate and Congressional Research Service (CRS) doubt that Congress has the power to mandate individuals to buy insurance under the Commerce Clause in Article I, Section 8 of the Constitution: “As a consequence of these concerns, the Senate Finance Committee asked the Congressional Research Service to opine on the constitutionality of the individual mandate.  The Service [CRS] replied: ‘Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this Clause to require an individual to purchase a good or a service.’”

Finally, the complaint also states that the PPACA contains no severability provision and that the act would not have been passed without the mandate.  The lawsuit says that “Because the individual mandate is an essential, non-severable provision, the entire act is likewise invalid.”

The Virginia AG’s website notes that “The United States has 60 days to file an Answer which will set forward their defense of why the PPACA is constitutional.” 


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Doctors Sue to Overturn the Health-Reform Law

The following is a press release from the Association of American Physicians and Surgeons:

The Association of American Physicians and Surgeons (AAPS) became the first medical society to sue to overturn the newly enacted health care bill, the Patient Protection and Affordable Care Act (PPACA). AAPS sued [on March 26] in the U.S. District Court for the District of Columbia. (The complaint and more information about the suit are posted at

“If the PPACA goes unchallenged, then it spells the end of freedom in medicine as we know it,” observed Jane Orient, M.D., the Executive Director of AAPS. “Courts should not allow this massive intrusion into the practice of medicine and the rights of patients.”

“There will be a dire shortage of physicians if the PPACA becomes effective and is not overturned by the courts.”

The PPACA requires most Americans to buy government-approved insurance starting in 2014, or face stiff penalties. Insurance company executives will be enriched by this requirement, but it violates the Fifth Amendment protection against the government forcing one person to pay cash to another. AAPS is the first to assert this important constitutional claim.

The PPACA also violates the Tenth Amendment, the Commerce Clause, and the provisions authorizing taxation. The Taxing and Spending power cannot be invoked, as the premiums go to private insurance companies. The traditional sovereignty of the States over the practice of medicine is destroyed by the PPACA.

AAPS notes that in scoring the proposal the Congressional Budget Office (CBO) was bound by assumptions imposed by Congress, including the ability to “save” $500 billion in Medicare, and to redirect $50 billion from Social Security. HHS Secretary Sebelius stated that PPACA would reduce the federal deficit, knowing the opposite to be true if these assumptions are unrealistic.

AAPS asks the Court to enjoin the government from promulgating or enforcing insurance mandates and require HHS Secretary Kathleen Sebelius and Social Security Commissioner Michael Astrue to provide the Court with an accounting of Medicare and Social Security solvency.

Congress recognized that PPACA cannot be funded without the insurance mandates, and will become unenforceable without them.

Court action is necessary “to preserve individual liberty” and “to prevent PPACA from bankrupting the United States generally and Medicare and Social Security specifically,” AAPS stated.

Source: “Doctors Sue to Overturn the Health Care Bill,” press release from the Association of American Physicians and Surgeons, March 29, 2010:

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Support for Repeal of New Health Reform Law Up To 58%

Three weeks after Congress passed its new national health care plan, support for repeal of the measure has risen four points to 58%. That includes 50% of U.S. voters who strongly favor repeal.

The latest Rasmussen Reports telephone survey of likely voters nationwide finds 38% still oppose repeal, including 32% who strongly oppose it.

For the previous two weeks following passage of the controversial plan, 54% of voters have favored repeal and 42% have opposed it.

But only 38% of voters think it is even somewhat likely that the health care bill will be repealed. Fifty-one percent (51%) see repeal as unlikely,

Those figures include 11% who say it’s very likely to be repealed and 18% who say repeal is not at all likely.

Still, 52% believe the health care plan will be bad for the country. Thirty-nine percent (39%) think it will be good for the country, and one percent (1%) more say it will have no impact. These numbers have changed little since the March 21 House vote to pass the health care bill.

Rasmussen Reports will track support for the repeal effort on a weekly basis for as long as it remains a significant issue. New updates will be released each Monday morning. Prior to passage of the law, Scott Rasmussen wrote a Wall Street Journal column explaining “Why Obama Can’t Move the Health Care Numbers.”

Forty-seven percent (47%) of voters believe repeal of the health care bill will be good for the economy. Thirty-three percent (33%) disagree.

Eighty-eight percent (88%) of Republicans and 54% of voters not affiliated with either major party favor repeal. Sixty-one percent (61%) of Democrats are opposed. Republican support for repeal is up eight points from a week ago, while Democratic opposition is down seven.

Ninety-four percent (94%) of those who consider themselves part of the Tea Party movement favor repealing the health care bill.

Sixty-five percent (65%) of the Political Class oppose repeal, while 75% of Mainstream voters think repeal is a good idea.

Sixty-four percent (64%) of Democrats and most unaffiliated voters (53%) say repeal of the bill is unlikely. A majority (54%) of Republicans feel otherwise and think repeal is at least somewhat likely.

Seventy-eight percent (78%) of the Political Class says repeal is not very or not at all likely.

Seventy percent (70%) of Democrats say the health care plan will be good for the country. Eighty-eight percent (88%) of GOP voters and 56% of unaffiliateds disagree.

Generally speaking, the partisan and demographic breakdowns have shifted little since passage of the health care bill. Those groups who opposed the bill tend to support repeal and those who supported the bill oppose repeal.

Most voters have believed for months that the quality of health care will suffer if the plan becomes law and that costs will go up.

Voters strongly believe the health care reform plan will cost more than official estimates, and 78% expect an increase in taxes on the middle class to pay for it.

Sixty-six percent (66%) of voters believe America is already overtaxed.

Based on national telephone survey of 1,000 likely voters conducted April 10-11, 2010 by Rasmussen Reports. See survey questions and toplines:

Source:  “Health Care Law: Support for Repeal of Health Care Plan Up To 58%,” Rasmussen Reports, April 12, 2010:

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Health Freedom Watch is published by the Institute for Health Freedom. Editor: Sue Blevins; Assistant Editor: Deborah Grady. Copyright 2010 Institute for Health Freedom.