State-Level Health Freedom Amendments Offered

Published May 31, 2016


Facing the prospect of anti-market health care reform at the national level, legislators in several states have decided to act preemptively to maintain their sovereignty while protecting the freedom of their citizens to make health care choices.

According to Christie Herrera, director of the Health and Human Services Task Force at the American Legislative Exchange Council (ALEC), a nonpartisan membership association of state legislators, legislation modeled after ALEC’s Freedom of Choice in Health Care Act has been filed or announced in 36 states.


Support for Kansas Legislation

Herrera outlined three reasons ALEC supports legislation such as SCR 1626, introduced on February 9 in Kansas.

“Citizens should have the right to pay directly for health care services with their own money,” Herrera said. “When government controls the dollars, they make treatment decisions based on what is best for government, usually leading to ‘cost containment’ through rationing or waiting lists. Patients and doctors, not bureaucrats, should decide what is best for patients.”

SCR 1626 would prohibit any state attempt to require an individual to purchase health insurance or forbid an individual from securing medical care outside of the required health care system.

Herrera points to Massachusetts, which has imposed an individual and employer mandate since 2006, as an example of the negative ramifications of these policies.

“Today in Massachusetts, more than a third of the uninsured don’t have coverage, health insurance costs 40 percent more than in the rest of the country, it’s harder for the newly insured to see a doctor, and legislators expect a $2-4 billion shortfall over the next decade,” Herrera said. “It is important for people to have health insurance coverage, but a government requirement to purchase health insurance is ineffective, bureaucratic, and costly.”


Federal Approach Prompted Legislation

Mary Pilcher-Cook (R-Johnson County), who sponsored the bill in Kansas, explains her rationale as a response to the press for national government-run health care.

“The discussion at the federal level by the President and Democrats in the U.S. Congress made it clear that the liberty of the people of Kansas in regards to their health care was at stake,” Pilcher-Cook said. “A primary duty of a state legislator is to protect the liberty of the state’s citizens.”

After a hearing before the Kansas Senate and House Health Committees in early February, the proposed amendment must be passed out of both the House and Senate health committees. It can then proceed to the House floor for debate, where it will need a two-thirds vote to be successful.


Constitutional Issues Raised

“In an unusual step, because of the constitutional issues at state, the legislation was also referred to the Senate judiciary committee,” Pilcher-Cook said. “Therefore, another public hearing will be forthcoming for this committee, and the proposed amendment must be passed out of this committee before it can come to a debate on the Senate floor. It will need a two-thirds vote by all Senate members, and would then go to voters for approval at the ballot box in 2010.”

Dave Roland, a policy analyst for the Show-Me Institute, a Missouri-based think tank, believes the legislation will pass constitutional muster. 

“The Health Care Freedom Amendments are clearly constitutional insofar as states are well within their rights to acknowledge liberties above and beyond those guaranteed by the U.S. Constitution, and there is no question but that these amendments would prevent the state governments from implementing a Massachusetts-style mandate,” Roland said.


Arizona Led Way

“The real question is the extent to which these bills will be useful in preventing Congress from implementing a bill that would infringe upon these state constitutional liberties,” said Roland. 

The first model for this legislative approach was an Arizona bill passed last June (HCR2014) putting the proposal on the 2010 ballot. A similar bill in Idaho (HB391) passed the House in early February and has had its first reading in the Senate. 

“The bill in Missouri is nearly identical to those being introduced in Kansas and elsewhere,” Roland explained. “All are modeled on the original Arizona proposal.”


Criticism of Health Freedom Amendments

One critic of the Kansas bill, Sen. David Haley (D-Wyandotte), said states should simply go along with the federal plan. 

“Whether or not you agree with the politics of the anticipated federal health reform bill, whether or not you think it will cost more or less, or whether or not you think our congressional delegation is doing a good job or not or whatever, … the health reform bill coming out of DC in whatever form it comes, when it comes, will provide more Kansans with access to care and a means to pay for that care,” Haley said at a recent hearing. 

Herrera disagrees, maintaining responsible states will push back against government-expanding health care legislation. 

“Reforms can be achieved without a bureaucratic, ineffective, and costly requirement to purchase health coverage,” Herrera said. 

“Our country was founded on principles of liberty, and if we don’t have this constitutional amendment to protect us, we are at the mercy of those who want to command and control how we live, what we buy, where we go, and what we do,” Pilcher-Cook said.


Sarah McIntosh ([email protected]) teaches constitutional law and American politics at Wichita State University in Kansas.


Health Care Freedom Legislation: 

Kansas legislation: 

Arizona legislation:

Idaho legislation: