By John Lyon
Arkansas New Bureau

LITTLE ROCK — As legislation to overhaul the nation’s health care system works its way through Congress, efforts are under way in Arkansas and elsewhere to thwart federal action at the state level.

Two Republican state lawmakers are floating proposed legislation to protect “freedom of choice in health care,” while a conservative grassroots group hopes to place a constitutional amendment on the ballot to block the federal health care overhaul in Arkansas.

If passed, the measures are sure to be challenged in court, observers say.

State Rep. Frank Glidewell, R-Fort Smith, and Dan Greenberg, R-Little Rock, received legislative approval Friday for an interim study of a draft bill that would prohibit an individual, employer or health care provider from being compelled to participate in any health care system.

The proposal also would assert that an individual or employer may make direct payment for health care services and cannot be required to pay penalties or fines for doing so, nor could a health care provider be penalized for accepting direct payment.

“I view the Obama plan as a bad and unprecedented intrusion, an increase in federal powers that’s not justified by the Constitution,” Greenberg said in an interview.

Glidewell and Greenberg hope to see the measure passed by the Legislature in 2011.

Meanwhile, Jeannie Burlsworth, chairman of Secure Arkansas, said the group known for its opposition to illegal immigration has an attorney working on the wording of a constitutional amendment the group will propose for the November ballot. The wording could be finalized as soon as this week, she said.

Burlsworth would not reveal details of the proposal, but she said states need to “take on” the federal government on the health care issue.

“The people don’t want more government involvement, especially in their health care,” she said.

Arizona already has a constitutional amendment on its November ballot seeking to block federal action on health care, and similar measures have been introduced in several other states. Such measures likely would be superseded by federal law, according to Rob Laflar, a law professor at the University of Arkansas in Fayetteville.

“The bill (by Glidewell and Greenberg) ignores the Supremacy Clause of the U.S. Constitution, which says that laws passed by Congress trump laws passed by the states,” Laflar said. “If Congress enacts a law providing health insurance for all, the states can’t say no — just as the states couldn’t say no to federal civil rights laws.”

But Robert Steinbuch, a law professor at the University of Arkansas at Little Rock specializing in health law, said federal action on health care could be vulnerable to a court challenge.

“I think ultimately what would need to be decided is whether or not it’s constitutional for the federal government to mandate the purchase of insurance, and I think that is a difficult question,” Steinbuch said.

Health care bills passed by the U.S. House and Senate have yet to be merged into a final bill, but both versions contain language requiring all Americans to buy health insurance or face fines. Subsidies would be provided for those unable to afford insurance.

The Constitution authorizes the federal government to regulate interstate commerce, but whether that includes the authority to issue a universal mandate to buy health insurance is something the courts will have to determine, Steinbuch said.

Greenberg said he believes the federal government is in danger of exceeding its bounds.

“What the federal government can do, it can regulate certain kinds of existing economic activity, but it can’t order everybody in the U.S. to perform certain kinds of economic activity,” Greenberg said. “Constitutionally speaking, we have uncharted territory.”

Some of the language in the measure proposed by Glidewell and Greenberg appears to be aimed at stopping a government-run health care system. Glidewell acknowledged that a government-run system is not part of the proposals being considered in Congress, but he said Congress may be headed down that road.

“The majority of Arkansas does not want that,” he said.

Justin Nickels, state coordinator of the American Federation of State, County and Municipal Employees, said he does not think action at the state level would succeed in blocking federal health care reform.

Arkansas should not say no to reforms that would increase the number of insured Arkansans, Nickels said. The people who want to block reform at the state level are offering rhetoric instead of ideas, he said.

“They’re upset that they can’t offer any actual solutions to the health care crisis of the times,” he said.