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PA to sue over health overhaul

Wednesday, March 24th, 2010



Pennsylvania is challenging the constitutionality of the new health care law. WHYY asked experts if that push-back is likely to prevail.

Some are calling it a states’ rights uprising. But Widener University law professor Michael Dimino expects the courts to squash the rebellion. He says the founders gave Congress clear authority to regulate commerce across state lines.

Dimino: So if states created all kinds of different rules governing commercial transactions, then it would be much tougher for the American public to create an integrated economy.

The health overhaul requires most Americans to buy insurance or pay a fine. Dimino says Pennsylvania may argue the mandate does more than set the rules for interstate commerce, it forces people to participate.

The health overhaul has proved to be unpopular with many Pennsylvanians. Domino says Attorney General Tom Corbett, a Republican who is running for governor, may end up with fringe benefits even if the challenge fails in court.

Dimino: So the attorney general is going to get a lot of headlines, and it’s going to look like he’s paying attention to what the people want and he’s standing up to the feds and so on, and then when he loses people aren’t going to blame him for it.

Pennsylvania joins 12 other states headed to court over the health law.

Pennsylvania may also challenge the federal plan to expand Medicaid, the health insurance program for the poor. Several state House Republicans say the Commonwealth is already cash-strapped and should not be forced to offer Medicaid to more people.

University of Pennsylvania health law professor Theodore Ruger says it’s probably the wrong time for a lawsuit. He says Pennsylvania only has a hypothetical claim that the Medicaid expansion will be an undue financial burden, so the challenge is not “ripe” or suitable for judicial review.

Ruger: Lawsuits are only valid for resolution by courts once there is an actual, concrete injury to the party that’s claiming the grievance. I think to raise this ground the states are going to need to wait until their shared payments kick in, which will be more than five years out.

Pennsylvania and the federal government share the cost of Medicaid, but Ruger says the new health law was crafted so that the federal government shoulders the extra expense of the expansion — at least in the early years of the overhaul.


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