Clif Cleaveland: Shouldn't voters have a say in health-care legislation?

From the Chattanooga Times Free Press
By Clif Cleaveland, MD

Earlier this year, Tennessee Attorney General Herbert Slatery III joined 18 other state AGs in support of a suit filed in a Texas federal district court to invalidate the Affordable Care Act.

The tax legislation passed by Congress in December 2017 abolished the penalty for individuals who chose not to purchase health insurance — the so-called individual mandate. The repeal of this penalty takes effect in January 2019. Plaintiffs in the Texas suit argue that invalidation of one part of the Affordable Care Act makes the entire ACA unconstitutional. The court began hearing oral arguments in the case on Sept. 10.

Forty-three states elect their AGs. Governors or legislatures appoint six AGs. Tennessee is unique in having the state Supreme Court select the AG for a term of eight years. AG Slatery began his term in 2016.

Tennessee's AG serves as the chief law enforcement officer for the state as well as counselor and adviser for all components of state government. The AG's duties are outlined in the State Code, Title 8, Chapter 6, Section 109.

Voiding the ACA without replacement legislation ready to take effect would lead to chaos in U.S. health care. The requirement that people with pre-existing conditions must have access to health insurance without penalty would be voided. Expansion of Medicaid programs, which 32 states and the District of Columbia undertook, would be nullified. Inclusion in insurance plans of essential health benefits, such as mental health care, cancer screenings and vaccinations, would be eliminated.

Without the ACA, millions of people would lose their health insurance. Personal bankruptcies due to medical expenses would rise sharply. People would die because of lack of access to care. The removal of mental health services from the list of essential services would limit treatment options for people with drug addictions. Public hospitals would struggle under the added financial burdens of providing care for sick or injured people who were uninsured.

How did AG Slatery arrive at his decision to add our state to the plaintiffs in the Texas suit to end the ACA? Did Gov. Bill Haslam make the request? Did legislative leaders suggest the action? Was this a personal decision? Seeking an answer, I phoned my state senator, who informed me that the AG is entirely independent of legislative or executive oversight. The AG, in effect, has no checks and balances on his decisions.

If the suit to overturn the ACA succeeds, does the AG have an alternative plan to take its place? If so, how long will it take to implement?

In 2015, a small band of state senators blocked a vote on Gov. Haslam's proposal to expand TennCare. Dubbed Insure Tennessee, the proposal would have added an estimated 280,000 people to the state's program for low-income residents. The federal government would pay for the expansion for the first five years and cover 90 percent of the costs thereafter. An estimated $1.4 billion of federal funds would be directed to the expansion.

After months of crafting and revising Insure Tennessee to gain the approval of the U.S. Department of Health and Human Services, the governor submitted the plan to a special session of the General Assembly in February 2015. The plan never came up for a vote. A 7-to-4 vote in the Senate Health and Welfare Committee blocked further action on the proposal. Seven legislators ended the prospects for extended health-care coverage to more than a quarter million of their fellow citizens. The seven did not offer an alternative plan.

Tennesseans had no voice in the fate of Insure Tennessee. We would never know how our legislative representatives might have voted. Perhaps a compromise or improvements in the act could have been reached had there been opportunities for debate in the General Assembly. Seven state Senators said "no" to debate and "no" to expansion of health-care coverage for poor residents. They did not trust voters to have input.

Similarly, we have had no input into the decision of AG Slatery to support the Texas lawsuit to trash the ACA.

If the federal judge in the Texas lawsuit decides that the ACA is unconstitutional, appeals will be filed and many months will elapse before any decisions are finalized.

On a matter as vital as health care, citizens should not be denied a vote through their elected representatives.

Clif Cleaveland, M.D., is a retired internist and former president of the American College of Physicians. Email him at