Indiana sues over health care reform

Dr. Robert Stone is an ER physician at Bloomington Hospital.

Dr. Robert Stone has seen his share of emergency room

surprises. But some sights have become all too commonplace.

The injured man, for example, who walks around on a broken

ankle for days before seeking treatment – yet still begs from the sick

bed not to be X-rayed because of the expense.

Or the diabetic, who stops testing her blood sugar because

she isn't insured, only to end up in the ER in diabetic shock.

"They're afraid to go to the doctor because they can't

afford it, so by the time they get to the ER they're so sick they have to go to

intensive care," Stone said. "Now maybe they've got a second night in the

hospital before they go home, and their bill gets up over $50,000, and then

they're financially ruined."

As an ER physician at Bloomington Hospital, director of

Hoosiers for a Commonsense Health Plan and a board member of Physicians for a

National Health Plan, Dr. Stone has a direct interest in what President Barack

Obama's new health care legislation means. He also has opinions.

Although the reforms are far from perfect, and the number of

uninsured is likely to grow until the president's plan is fully implemented in

2014, the new bill was still an "important precedent," he said.

"From my perspective as an ER doctor, anything that

increases coverage – that covers, hopefully, at least half the uninsured

– that's wonderful," Dr. Stone said. "The free market experiment that

we've been on since the early '90s has been a disaster."

Still, despite reports from the trenches, and endorsements

by non-profit, non-partisan groups like the American Hospital Association,

Indiana's Attorney General, Greg Zoeller announced last week he would join 13

other state attorneys general in suing the federal government, in hopes of

overturning health care reform in court.

"When the federal government imposes unprecedented legal

obligations of this magnitude on state government, it is my obligation as

Attorney General to join and participate in challenging the constitutionality

of the bill," Zoeller said in a press statement.

For anyone who's followed the trajectory of Indiana politics

over the last half year, the move was hardly a surprise. In truth, the suit was

a long time coming. Zoeller probably couldn't have stopped it if he'd wanted


The governor's baby

As much or more than any other piece of legislation to

emerge during Gov. Mitch Daniels' tenure, the Healthy Indiana Plan (HIP) was

the governor's baby. Centered on personal health-care accounts, and paid for

with money to spare by increased cigarette taxes, HIP was a centerpiece of progressive

conservative lawmaking that showcased the best parts of Daniels' political

mantra – that personal and fiscal responsibility are crucial components

of successful social welfare.

Indeed, while Washington Republicans were hard-pressed this

past year to convincingly demonstrate a willingness to pursue meaningful

reform, HIP was something Daniels could tout in contradistinction to Obamacare

– an example of the conservative approach made good.

Little surprise, then, that Obama's health care reforms

– which, once fully in place, will effectively kill Daniels' piece de

resistance by moving its beneficiaries to

an expanded version of Medicare – provoked a strong reaction from the


Critics have long maintained that HIP doesn't go far enough.

According to the Indiana Family and Social Services Administration (FSSA),

roughly 561,000 Hoosiers are without health insurance.

Once implemented, the federal reforms should translate to

coverage for most of those uninsured Hoosiers, in large part by adding roughly

half-a-million people to the 1.2 million already on Medicaid.

But the Daniels administration would prefer to expand HIP,

believing that the Medicaid expansion will cost the state dearly in financial

terms. As such, Daniels blasted the federal bill as a "very, very serious

mistake" and immediately suspended new enrollment by childless adults in HIP,

citing financial concerns.

The suspension has drawn fire, but Jane Jankowski, a

spokeswoman for Daniels, argued that the move will have little effect because

of a federal cap on the number of childless adults the state is allowed to

enroll in order to receive matching funds – a cap that was met last year,

putting as many as 40,000 Hoosiers on a waiting list.


precautionary move

Critics say HIP's impending demise is the real reason behind

the Attorney General's lawsuit, and that the move to suspend HIP enrollment is

an exercise in cutting off one's nose to spite one's face.

Indiana House Speaker, Rep. B. Patrick Bauer (D-South Bend)

called the HIP suspension "mean and ugly," and questioned the legal authority

of the governor to suspend enrollment in a program that was duly passed by the

General Assembly.

"I think the governor is very, very disappointed the health

care bill passed because he wanted to showcase his HIP program," Bauer said.

"He's leaving thousands of people without healthcare because this federal law

doesn't start until 2014. So, for three and-a-half years, they're not going to

have any health care."

"I just think it's sort of a form of vengeance for passing a

federal health care program that interferes with his agenda," he added. "And I

think that's a shame."

At a recent press conference, Daniels was pressed as to why

he felt it necessary to suspend some HIP enrollment now when new rules won't go

into effect until 2014. He replied that it was "a precautionary move for the


"I don't see any reason to add people to the rolls of a

program whose days are numbered," he said.

In the

meantime, the question remains: Does Zoeller's lawsuit stand a chance?

Before he joined the lawsuit, Zoeller had already done his

homework – notably when Republican Sen. Richard Lugar asked him to look

into the constitutionality of the Senate bill passed in December. Of particular

concern was the individual mandate, which will require everyone that isn't

eligible for Medicare or Medicaid to purchase insurance from a private carrier

or a state-run insurance exchange. Those who do not will face a fine.

Zoeller produced a 55-page report in February, outlining the

case against the bill. Among his reasons, Zoeller argues in the report that the

individual mandate "would exceed even the most expansive understanding of the

Commerce Clause," and that "by regulating insurance companies so

comprehensively, the Bill would render them de facto public utilities and

stifle their ability to earn a profit."

Professor John Hill, a constitutional law expert at the

Indiana University School of Law in Indianapolis, said he felt the bill

represented "an eroding of certain constitutional values." Whether or not it

actually infringed upon a particular clause of the constitution, "as it's now

interpreted by the Supreme Court," he said, was a "tougher call."

A real hot potato

"Supreme Court precedent over the course of the twentieth

century has really altered the meaning of many of the provisions of the

Constitution that might be applicable," Hill said.

Hill added that Zoeller's argument regarding profit-making

infringement lacked persuasive power. Energy utilities exemplified an important

precedent whereby private companies were essentially made public. Interpreted

broadly, any tax could be construed as stifling a company's ability to earn a


Zoeller's contention regarding the individual mandate made a

more compelling argument, Dr. Hill said, although history still leaned in favor

of the president and Congress. Along with ample court precedence since the

1930s, he noted that the judiciary was in many ways the government's weakest

branch, and would likely avoid overturning such a massive bill.

"In the past, in most cases, the court has been reluctant to

inject itself into real political disputes," he said. "All precedence aside,

the institutional dimension means that the court would be very cautious before

it jumped into this. This is a real hot potato."