NC House Bill 2, Protect The Freedom to Choose Health Care

GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
H 1
HOUSE BILL 2
Short Title: Protect Health Care Freedom. (Public)
Sponsors: Representatives Stam, Barnhart, Hollo, and Murry (Primary Sponsors).
For a complete list of Sponsors, see Bill Information on the NCGA Web Site.
Referred to: Judiciary, if favorable, Finance.
January 27, 2011
*H2-v-1*
A BILL TO BE ENTITLED 1
AN ACT TO PROTECT THE FREEDOM TO CHOOSE HEALTH CARE AND HEALTH 2 INSURANCE. 3
The General Assembly of North Carolina enacts: 4
SECTION 1. Chapter 58 of the General Statutes is amended by adding a new 5 Article to read: 6
"Article 49A. 7
"North Carolina Health Care Protection Act. 8
"§ 58-49A-1. Constraints on health care freedom prohibited. 9
(a) A law or rule shall not do any of the following: 10
(1) Compel a person to (i) provide for health care services or medical treatment 11 for that person or (ii) contract with, or enroll in, a public or private health 12 care system or health insurance plan. 13
(2) Interfere with a person's right to pay directly for lawful health care services 14 or medical treatment to preserve or enhance that person's life or health. 15
(3) Impose a penalty, tax, fee, or fine on a person for (i) providing for, or failing 16 to provide for, health care services or medical treatment for that person or 17 (ii) contracting with, or enrolling in, or failing to contract with or enroll in, a 18 public or private health care system or health insurance plan. 19
(b) This section shall not be construed to expand, limit, or otherwise modify any of the 20 following: 21
(1) The common-law doctrine of necessaries that a spouse is liable for the 22 necessary expenses incurred by the other spouse, including expenses 23 incurred by medical necessity, or any other duty a person owes to a spouse 24 or dependent with respect to the provision of health care services or medical 25 treatment. 26
(2) Any law regarding which health care services or medical treatments are 27 lawful within this State or who is authorized to provide health care services 28 or medical treatments within this State. 29
(3) Any right or duty of a health care agent with respect to the principal pursuant 30 to a health care power of attorney executed in accordance with Article 3 of 31 Chapter 32A of the General Statutes. 32
(4) Any law regarding the right or duty of a parent or guardian in the 33 determination or provision of health care services or medical treatment for a 34 minor. 35
General Assembly of North Carolina Session 2011
Page 2 House Bill 2-First Edition
(c) An individual aggrieved by a violation of this section has standing to bring a private 1 right of action for the violation. In addition, the Attorney General shall have the duty and 2 standing to bring or defend a State or federal action or proceeding on behalf of the residents of 3 this State to enforce the provisions of this section." 4
SECTION 2. This act is effective when it becomes law.

What Can I Do?

One of the most common and frustrating questions about how to reverse 100 years of Progressive attacks against the U.S. Constitution is "What Can I Do?" Many people feel powerless. Some even say "I Don't Vote Because It Doesn't Make Any Difference," or simply "My Vote Doesn't Count."

Well, if there is anything that the Tea Party movement has shown is that everybody's vote and everybody's opinion does count, and when you sit on your couch and don't say anything the Progressives, who represent the minority (<20%) in this country, gradually erode away your God given inalienable rights.

So, what can you do? The Tea Party Patriots make the following recommendations (slightly edited to be more generalized):

1. Hold rallies and vigils in very public places and try to get as much media as you can
2. Write letters to the editors of local newspapers.*
3. Write articles on your own blogs and comment on other blogs, especially those that seek to propagandize the Progressive agenda
4. Call, email, and fax Congress.*
5. Post the facts on your Facebook pages and Twitter accounts.*
6. Respond through press releases to local media.
7. Form your own rapid response team to combat the Obama and Progressive machines.
8. Most Democrats like to trot out personal, anecdotal stories about how their "crisis-du jour" will hurt a specific person, so tell your story about how Obama and the Progressive movement will hurt you.
9. Take the time to confirm and double check the facts and arguments.*
10. Use your network and the experience you gained from working for campaigns to reach out to people in your area - i.e. schedule phone banks, door belling, sign waving - basically, instead of working to educate your neighbors about a candidate, work to educate your neighbors about the dangers of the Obama and Progressive agenda.

*I find these (2, 4, 5, and 9) to be something anyone can do.

In addition:

• make sure to vote in Primaries and Elections, and badger your friends and acquaintances into voting. Make sure they know how important their vote is, and point to the 2010 election to drive home your point.
• Get involved in something, whether its a Tea Party, the local school board, county or state issues and election, national elections, whatever, just get involved.
• Know what is going on in your local community.

Letter on the Repeal Amendment

This past Saturday, January 15, 2011 The John Locke Foundation and the Crystal Coast Tea Party Patriots held a Constitutional Workshop in Morehead City, NC. During the workshop, there was a good discussion of the proposed Repeal Amendment that is being considered by a number of state legislatures.

The Repeal Amendment states “Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.” The Repeal Amendment would give two-thirds of the states the power to repeal any federal law or regulation, in effect countering the 17th Amendment to the U.S. Constitution, and restoring power to the states eroded by the Federal government (http://www.repealamendment.org/).

I know that the new Republican majority in the NC Legislature has a lot on it's plate after over 100 years of Progressive government in NC, but the Repeal Amendment would seem to rank as a high priority by the NC Legislature in order to regain the right of our State to control our own destiny sans Federal interference.

I hope that you will contact your NC State Legislators and ask them to make passing the Repeal Amendment a high priority on this years agenda. It would indeed be historical if NC became one of the first states to pass the Repeal Amendment, a good first step in reversing decades of progressivism and Federal domination.

Letter to the Editor, Candidates to Replace RINOs

The Crystal Coast Tea Party Patriots encourages conservatives of either party or political affiliation to consider becoming a candidate to replace NC elected officials who do not embrace the principles of Fiscal Responsibility, Constitutionally Limited Government, and Free Markets that promote U.S. products, businesses, and labor.

It seems like the 2010 election was just yesterday, but we've already seen that many of those who portrayed themselves as conservatives and who were recommended by Tea Party organizations including the Crystal Coast Tea Party Patriots are not being faithful to our principles.

Senator Richard Burr, just reelected to a second term with the recommendation of the Crystal Coast Tea Party, voted in the Lame Duck Congress with the liberals by voting for The Food Safety and Modernization Act that expands government and the deficit while hurting small farmers in NC; The new Tax Bill that extended most the current tax rates but also increased the deficit with subsidies for ethanol, and wind and solar power, as well as bailouts for mass transit unions; and voting with the Democrats to repeal Don’t Ask, Don’t Tell in the military. Senator Burr’s next election is six years away, but we need start now to find a conservative candidate to replace him in 2016. As demonstrated by his votes in the 2010 Lame Duck Congress, Senator Burr pretends to be a conservative, but he is a Republican In Name Only (RINO).

Senator Kay Hagan votes her party’s line consistently, voting 90% of the time with her party (according to http://www.opencongress.org). Conservative candidates from both parties are needed to run against Senator Hagan when her term expires in 2014. Democrats would be wise to find a conservative to run against Senator Hagan or they will surely risk losing the seat.

NC 3rd District Representative Walter B. Jones, recommended by the Crystal Coast Tea Party Patriots in 2010, is an enigma. He votes with his party 86% of the time, abstained in 2010 a whopping 4% of the time, and votes against his party 10% of the time (according to http://www.OpenCongress.org). On December 2, 2010 Representative Jones was one of only three Republicans to join the Democrats in passing H.R.4853: Tax Relief, Unemployment Insurance Authorization and Job Creation Act. From December 17 to December 22, 2010, Representative Jones abstained from voting on 17 bills (http://www.opencongress.org) prompting one to ask “Where was Representative Jones?” I’ve heard that Representative Jones promised to support term limits in Congress, and that he vowed not to serve more than 6 terms; he is now in his 9th term. I guess he likes living in Washington, DC more than he likes eastern NC. Eastern North Carolina desperately needs a conservative candidate to run against Representative Jones in 2012. The Democrat 3rd District candidate in 2010 was somewhat to the left of Nancy Pelosi, and didn‘t stand a chance of unseating Representative Jones. If the Republicans won’t replace Representative Jones, then the Democrats need to get serious and find a conservative candidate that will bring Representative Jones back to NC where he belongs.

This is the time to decide. If you are a conservative who embraces the principles of Fiscal Responsibility, Constitutionally Limited Government, and Free Markets that promote U.S. products, businesses, and labor, please consider running in opposition to Senators Richard Burr and Kay Hagan, and Representative Walter B. Jones. Contact us at http://www.crystalcoastteaparty.com.

Progress Report on Virginia's Healthcare Law Suit

Below is a progress report on Virginia's fight against the healthcare bill.  Our favorite Attorney General, who spoke in Washington on 9/12, is making some progress on defeating the federal government forced healthcare program.  Hopefully, North Carolina will follow suit once the republicans obtain with the majority on 11/2/10.  In the meantime, you might want to donate to their legal defense fund.  See article below.

 

 

September 27, 2010

Dear Friends,
We are in the middle of the summary judgment phase of the health care case in the district court in Richmond, and I wanted to give you an update of where we stand at the moment and what's coming next.

So Far

I'm sure you all recall that on August 2^nd the judge in our case rejected all four of the feds' arguments for why Virginia's case should be dismissed, and that as part of his ruling, the judge noted how extraordinarily far the federal government is reaching (in a constitutional sense) in the federal health care law.
Interestingly, in the Florida case, they had their hearing on the feds' motion to dismiss on September 14^th.  This was the equivalent hearing to ours on July 1^st.
The judge in the Florida case indicated from the bench on September 14^th that he expected at least part of the states' case to go forward, i.e., survive the feds' motion to dismiss.  He also said that he would issue a ruling on October 14^th, so we're looking forward to seeing that, and we're hoping (and cautiously expecting) that our allies in Florida will be proceeding forward parallel to us here in Virginia.  It will be interesting to see that ruling only four days before our summary judgment oral argument in Richmond (more on this later).

Where We Are In the Process Now

On September 3^rd, both Virginia and the federal government filed their motions for summary judgment.  As the name implies, these motions are requests by each side to the court to rule "summarily," i.e., without a trial, in our favor.  In my opinion, these filings didn't hold much in the way of surprises.
However, this past week both sides filed their opposition to the other parties' motion for summary judgment.  Did you follow that?  For example, on September 3^rd, Virginia filed its motion for summary judgment and on September 23^rd, the feds filed their opposition to Virginia's motion for summary judgment.  And also on September 3^rd, the feds filed their motion for summary judgment, and we filed our opposition on September 23^rd.
One interesting note, we filed in the early afternoon on the 23^rd, while the feds filed at 9:49 p.m.  The deadline is midnight - yikes were they pushing it close to that line!

Some Eye Opening Items in the Feds' Opposition

Three things stood out most to me in the feds' opposition to our summary judgment.  One appears generally in the brief, while the other two both relate specifically to the discussion regarding the appropriate remedy if the court rules in Virginia's favor by declaring the individual mandate unconstitutional.
First, the general observation.  Call it the "silver bullet(s)" of their brief.  In several different locations, the feds cite cases never before appearing in this case for sweeping and powerful propositions.  In other words, they keep using them like 'silver bullets.'
A reading of some of these cases certainly looks like some real strrrrrreeeetttttcccchhhhing on their part, but we'll have to deal with that in our reply.  This observation may be nothing more than boring to non-lawyers (and to most lawyers...), but I'll leave that to y'all to decide.
The second and third observations are more interesting, and as I said, both relate to the potential remedy if the court declares the individual mandate to be unconstitutional.
The second observation is that the feds take a similar approach to determining what would be left of the law if the individual mandate is found unconstitutional.  I'm not used to them approaching much of anything in this case in a similar manner to us.
Here is one of their case quotes (i.e., where they quote a US Supreme Court case):

"After finding an application or portion of a statute unconstitutional, we must next ask: Would the legislature have preferred what is left of its statute to no statute at all?"

[Timely side note: the case quoted is Ayotte v. Planned Parenthood.  This is the same Ayotte who is now running for the U.S. Senate in New  Hampshire. She was on the right side of that case!]
This quote is an interesting question that any of you can chew on... but don't chew on it just yet, until you read through my third observation.  Then come back to the question and come to your own conclusions.
The third observation is perhaps the most stunning (even though it's actually quite logical...).  The federal government has conceded that if the individual mandate is found unconstitutional, then all of what they refer to as the "insurance industry reforms" must fall alongside the individual mandate.
Given that up to this point, they have conceded nothing, I am genuinely shocked at the sweeping nature of this concession.  Now, mind you, as I mentioned above, this is a logical position.  Why is it a logical position?  Well, I'll tell you.
All along, the feds have said that their forced changes to the insurance industry's products REQUIRE that everyone must be in the insurance pool for their newly-redesigned (ruined?) insurance scheme to 'work.' [I just can't bring myself to type that word without quotes in this context.]  So, logically, if we beat the individual mandate, everyone will NOT be in the insurance pool; therefore, their other changes to their newly-redesigned insurance scheme will not 'work.'
Thus, they have conceded that if the insurance mandate is unconstitutional, then their other insurance requirements must also be discarded by the court.
Here is the quote from their brief:

"Under these principles, some provisions of the Act plainly cannot survive.  As defendants repeatedly have made clear ... insurance industry reforms in Section 1201 such as guaranteed-issue and community-rating will stand or fall with the minimum coverage provision.... As Virginia correctly recognizes, these regulations of the interstate insurance market must be coupled with the minimum coverage provision in order to be effective.  Absent a minimum coverage provision [a.k.a.: "individual mandate"], the guaranteed-issue and community-rating reforms in Section 1201 would cause many to drop coverage, leading to a spiral of increased premiums and a shrinking risk pool - the insurance market will 'implode.'  Because Congress would not have intended this result, these reforms cannot be severed from the minimum coverage provision."

Food for Thought

Okay, now let's look at the quoted question from my second observation again:

"After finding an application or portion of a statute unconstitutional, we must next ask: Would the legislature have preferred what is left of its statute to no statute at all?"

There are any number of sections in the legislation we could look at and contemplate this question, but one may reasonably ask whether ANYTHING would have passed without the insurance pieces of the bill.  Recall that many liberals were screaming that this bill was a 'sellout' and didn't go far enough.
In fact, I was on Fox Business on September 14^th - the day of the court hearing on the feds' motion to dismiss in the Florida case - and I was watching Congressman Dennis Kucinich (D-Far Left) on the show just before I went on.  He was sweeping in his attacks on what he called our "profit based system."  This system is also frequently referred to as "capitalism."
Historically of course, capitalism has provided the greatest opportunity to meet the needs and raise the standard of living of the most individuals of any economic system in the history of the world.  But, no matter...
Umm, Congressman, did you not notice what happened in all those other systems around the world in the last 100 years that didn't exist in "profit making systems?"  Perhaps we could sign him up for Cuban health care.  They have achieved Cong. Kucinich's dream of mandated universal coverage, and gee, look how long Castro has lived!  Surely it must be working well enough for the Congressman.
On the really expensive front, what they appear to be particularly targeting for saving is their massive (mandated) increase in Medicaid.  In Virginia, using the feds' cost estimates (which I have discussed at other times as having been completely discredited), we are looking at an additional $1billion+ added to our already difficult healthcare budget by FY 2022.  We will set aside where that money is supposed to come from for the moment... but would Congress have passed elements of the bill like the Medicaid increase without the individual mandate and the insurance elements?

I'll leave that question for you to contemplate as the case rolls forward.

What's Next?

On Monday, October 4^th, each side will file its final brief (the reply brief), AND all of the amicus briefs will be filed that day as well.  The amicus briefs will be very interesting and for those of you willing to dig into the details, you should take a look at those briefs.  Just seeing who files will be interesting, even if you don't read the briefs!
On October 18^th, we will be back in court for the summary judgment hearing.  This is where the constitutionality of the individual mandate will be openly debated in court.
At some point thereafter, perhaps around the end of November, the judge will likely issue an order with his ruling.
One other strategy of the feds' that became evident last week is their apparent intention to drag out the proceeding, at least for now.  They have clearly indicated to the judge that if he finds the individual mandate unconstitutional, that they will want him to hold yet another hearing to focus on what is the appropriate remedy.

In other words, they will want to pick the bill apart piece by piece, arguing over whether each piece should stay or go with the individual mandate.  Fun.
We shall see.

Collateral Impacts

Obviously, one other impact is on the November elections.  I will leave to each of you to determine how the healthcare matter is effecting those elections.
A little closer to home, we continue to take significant 'hits' from left-leaning media, including Olberman, Maddow and national outlets, alongside with the usuals: WaPo, Roanoke Times, and the Va. Pilot, so please keep up your support of our efforts, as much of what I am doing on the political side is simply educating folks up on all of this (see, e.g., the professional webcast on the healthcare case and first principles on my website at www.Cuccinelli.com).  We need your help writing letters to the editor and donating to help us swim against the tide of media assaults (e.g., the webcast is a political expense), so please keep us in mind and donate today!
As things roll forward, I will keep you up to date as best I can!

Thanks again for all of your support!
 
Sincerely,


Ken Cuccinelli, II
Attorney General of Virginia

Letter from Senator Kay Hagan (D-NC)

The letter below is a letter from NC Senator Kay Hagan justifying her "yea" vote for the Senate health care bill:


--------------------------------------------------------------------------------

January 5, 2010
Dear Friend,

Thank you for contacting me regarding your concerns about health care reform. I greatly appreciate hearing your thoughts on these important issues.

Each year, costs associated with our current health care system increase. North Carolinians are struggling to afford insurance coverage, and the unprecedented economic crisis facing our nation has made it still more difficult for working families to manage medical costs while making ends meet. In North Carolina alone, the number of uninsured has risen to approximately 1.8 million, which represents 22 percent of the state's population.

The Patient Protection and Affordable Care Act, H.R. 3590, is a fiscally responsible plan that will reduce the deficit by nearly $132 billion in the next 10 years. I have heard from so many North Carolinians who are cut off from health care because of pre-existing conditions. Under this legislation, insurance companies will no longer be able to use ‘pre-existing conditions' as an excuse to deny coverage. The bill expands coverage and lowers costs by focusing on prevention and cracking down on fraud and abuse in the system. Additionally, the legislation gives states the authority to form compacts to purchase health insurance across state lines and regionally.

As you know, there are various opposing views within the health care reform debate, and I would like to address a few here. When crafting the Patient Protection and Affordable Care Act, the Senate went to great lengths to ensure that if you have a health insurance plan that you like, you can keep it. Also, the Senate legislation would require Members of Congress and their congressional staff to participate in the Exchange, where the uninsured and other eligible Americans will be able to obtain affordable health coverage.

I recognize that medical liability reform has the potential to reduce medical malpractice insurance premiums for health care providers and decrease defensive medicine practices. Accordingly, I am in favor of President Obama's plan to implement demonstration projects to evaluate medical liability models being used and implemented around the United States.

In addition, concern has been raised about illegal aliens being able to receive medical services under health care reform. The Patient Protection and Affordable Care Act defines an eligible individual as a citizen or national of the United States who is lawfully present in the United States. Illegal immigrants would be explicitly barred from receiving services under the legislation.

Also, some believe abortion services could be covered under health care reform. This is inaccurate, due to a long-standing federal law that includes a broad prohibition against using federal funds for abortion services. Health care reform would not change that prohibition, which is known as the Hyde Amendment.

Furthermore, it has come to my attention that some believe there would be rationing of health care services under health care reform. The Patient Protection and Affordable Care Act would not do anything to limit the ability of your doctor to pursue the course of care he or she believes is most appropriate for you. While the bill would fund research into the comparative effectiveness of various treatments, that information will simply serve as a tool for practitioners to use as they see fit. The Patient Protection and Affordable Care Act specifically states that any recommendations made under health care reform shall not be construed as mandates for payment, coverage, or treatment of health services.

I will continue to work with my Senate colleagues and stakeholders throughout North Carolina to help pass pragmatic, comprehensive health care reform. To view the Patient Protection and Affordable Care Act, I encourage you to visit www.thomas.loc.gov.
Again, thank you for contacting my office. It is truly an honor to represent North Carolina in the United States Senate, and I hope you will not hesitate to contact me in the future should you have any further questions or concerns.

Sincerely,



Kay R. Hagan

Please do not reply to this email. Instead, if you have further questions, please visit www.hagan.senate.gov and fill out my web form for your inquiry. Thank you.

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If she really believes this crap, she needs her head examined!

Compromise Begets Mediocrity

Some politicians champion compromise as a virtue. Senator John Magoo (R-AZ) comes to mind hailing himself as a maverick who compromises his conservative principles (if he indeed has any) to accommodate the likes of the former Senator Ted Kennedy.

But is compromise all that it is cracked up to be? Not at all; compromise begets mediocrity. The best one could ever hope for when a compromise is reached is average, but the results are usually below average.

There is a notable exception to compromise, which the Democrats have successfully exploited because they have a long-term plan; unlike Republicans like Senator Magoo who compromises to show how magnanimous he is.

Let's examine compromise in a practical example:

First, pretend that you are a liberal, progressive Democrat. I know how creepy, repulsive, gag-in-the-mouth it is pretending you are a liberal Democrat, but it's necessary for the greater good. As a liberal, progressive Democrat you want everybody but yourself to have government controlled, nationalized, public option health care plan.

Second, as an intelligent, conservative American with sound principles and common sense, you want a health care plan that provides the best health care in the world (like 85% of us already have) to be available to all who want it, where you don't have to wait in long lines (which we also have except in the emergency room because of illegal aliens), where you can talk to your doctor and make your own decisions along with your doctor and your family (not the government), and without the government deciding that you are no longer worth spending money on to see a doctor. That's basically what we have now for 85% of legal Americans. You recognize that there are some problems with the current system, but most of the problems are the result of 133,000 pages of regulations currently in the Federal Register. These problems can be fixed without completely overhauling a health care system that most (85%) people are pretty satisfied with.

If you are Senator John Magoo you might blurt out at a town hall meeting without thinking that "what we need to do is work with the Democrats to find a compromise on health care reform." Well, if the Senator does that what might the result be?

First, one might conclude that some of the things you like about your current health care plan will go away, because the good Senator from AZ will have to give up something. So now 85% of us are a little less happy with the health care we have than we are now.

Second, you might also conclude that some sort of government option, such as the public option, health care co-ops, or a "trigger" might be included by the other side. But don't worry, it's 'just in case.' And, of course, being a compromisor Senator Magoo goes along with it. Now 85% of us happy Americans are just a little less happier than we were before.

Now, remember that the long-term plan the Democrats have. They just got part, a big part, of what they want. They know that all they have to do is sit back, wait, then come back to the table later to carve out another piece of the pie from their original plan. Compromise is good for them, because they don't give up anything; they keep picking away at the public option, or whatever their progressive agenda calls for them to do.

The Republicans on the other hand skip off into lala-land thinking how great they are, and that they won a big victory by making the Democrats compromise. All the while not having a clue that they, the Republicans, just eroded a little bit more of our freedom.

And what did we get? A government health care plan that 85% of the people are lot less happy with because the government is now involved with our health care decision-making, that really cost more than what we previously had because not only do you now pay for your government health insurance, but your taxes have gone up to pay for the inevitable deficit, the fraud and abuse, and to pay off all of the special interest on both sides of the aisle.

Compromise is not inevitable; it is a cop-out!

Live free or die at the hands of the government.