Coakley springs into health fray

Backing insurance rule, files brief in US appeal

Attorney General Martha Coakley Attorney General Martha Coakley
By Kay Lazar
Globe Staff / March 9, 2011

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Massachusetts Attorney General Martha Coakley has jumped into the legal battle over the national health care law, arguing in a federal court brief that the state’s experience after passage of a similar measure in 2006 supports the federal government’s authority for adopting the legislation.

She filed the brief Monday in the Fourth US Circuit Court of Appeals in support of the Obama administration’s appeal of a Virginia federal judge’s ruling that struck down a central provision of the national overhaul, known as the individual mandate.

Coakley, a Democrat, prominently mentioned in her argument that the controversial requirement, which requires citizens to buy health insurance or pay a penalty, was proposed in Massachusetts and later signed into law in 2006 by Mitt Romney, then governor and a Republican.

“Governor Romney and the Massachusetts Legislature, like Congress, determined that an individual health insurance mandate, as part of a comprehensive reform package, would serve to increase access to healthcare while greatly decreasing the detrimental cost-shifting caused by people who chose to forego insurance and shift the cost of their current and future healthcare to oth ers,’’ Coakley argued in her brief.

Romney, who has been quietly testing the waters for a potential 2012 presidential bid, has been defending the Massachusetts health plan as an example of a state exercising its powers to solve problems within its borders. But he has criticized the Obama plan as a federal overreach that usurps states’ rights.

Coakley said in an interview yesterday that she filed the brief because she felt it was important for the court to understand the origin of the individual mandate, and that the Obama administration approved, but did not request, her action.

“It’s hard to explain what happened here in Massachusetts if you don’t show the whole picture, including that at the time, this was a unique bipartisan coalition of hospitals . . . the Legislature and the governor,’’ Coakley said. “It wasn’t a political idea at the time, it was a good idea at the time.’’

The federal judge in Virginia concluded in a December decision that the failure to buy health insurance is not economic activity subject to Congressional regulation. But Coakley argues that preventing healthy people from foregoing health insurance until they are sick or injured has generated substantial economic benefits for Massachusetts, by reducing use of a state “free care’’ fund used to reimburse hospitals for treatment of the uninsured and underinsured.

Coakley noted that Massachusetts is “uniquely situated’’ to show the benefits of an individual mandate on a national level, because, she said, that requirement resulted in 97 percent of residents having insurance coverage by 2009 and a $300 million annual decline in spending on “free care.’’

Virginia Attorney General Kenneth Cuccinelli, whose challenge of the mandate sparked the federal judge’s decision, said in a statement released by his office yesterday that “whatever the realities of Massachusetts’ experience with its health care reform efforts, Massachusetts’ experience tells us nothing about what the Constitution says about the limits of congressional power, which is the issue in our case.’’

The Virginia case is one of several challenging the national law.

Legal scholars and health policy specialists are divided about the impact Coakley’s arguments might have on the court proceedings.

Carl Tobias, a University of Richmond constitutional law school professor, said Coakley’s brief bolsters the Obama administration’s position because the Massachusetts experience uniquely demonstrates that the national plan meets a critical constitutional test, known as “rational basis,’’ that the court will consider when deciding whether it is legal.

But Randy Barnett, a constitutional law professor at Georgetown University Law Center and an early critic of the individual mandate, said the Coakley brief does little to strengthen the Obama administration’s argument.

“This goes beyond anything the court has allowed Congress to do,’’ Barnett said. “If the Massachusetts plan is constitutional and so beneficial, other states are free to adopt it.’’

Kay Lazar can be reached at