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March 31, 2009

Health insurance mandates: Geez, good thing Obama isn't pushing them, 'cause he'd get tied up in litigation for forever

San Francisco's municipal health insurance mandate is in the news again this week.  The 9th Circuit Court of Appeals upheld the mandate in September (after sturm und drang and litigation over the San Francisco health insurance mandate going back almost two years now), and the local restaurant association has taken the fight to the Supremes.  The association suffered a setback this week, as the high court refused to enjoin enforcement of the law pending appeal.  We'll see this fall whether the Supremes will hear the case.  The program has extended health benefits to tens of thousands of folks, and is set to underwrite some new clinics as well. 

The challenge comes out of the arcane left field that is ERISA pre-emption jurisprudence.  The Circuit Court's response last fall, per the local paper:  "San Francisco was exercising its legal authority to protect its residents' welfare and was not regulating employee benefit plans, because employers have a choice of insuring their own workers or paying a fee to the city."

As I've observed before, the fact that an ERISA challenge has not been brought in Massachusetts is a testament to the coalition-building that went on across all sorts of lines before the Massachusetts plan was enacted.  For all its faults, the Massachusetts experience -- like the San Francisco experience -- serves as a laboratory environment in which experimentation is taking place.  Here's hoping that a workable national health care reform plan -- backed by a solid coalition -- comes out of all these experiments and the continuing national discourse on the subject.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting

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