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Physicians' Group Sues to Overturn Health Reform

John Commins, for HealthLeaders Media, March 31, 2010

The Association of American Physicians and Surgeons has filed a lawsuit to overturn the Patient Protection and Affordable Care Act, claiming the health reform mandate to buy health insurance is unconstitutional under the Fifth and 10th amendments, the Commerce Clause, and the authority to tax.

"If the PPACA goes unchallenged, then it spells the end of freedom in medicine as we know it," Jane Orient, MD, executive director of AAPS, said in a media release. "Courts should not allow this massive intrusion into the practice of medicine and the rights of patients." Orient also predicted "a dire shortage of physicians if the PPACA becomes effective and is not overturned by the courts."

Among its litany of complaints, Tucson, AZ-based AAPS said in its suit, which was filed Friday in U.S. District Court in Washington DC, that the individual insurance mandate that takes effect in 2014 will enrich insurance company executives, but violates the Fifth Amendment protection against the government forcing one person to pay cash to another.

The AAPS said the reforms also violate the 10th Amendment, the Commerce Clause, and provisions authorizing taxation, which AAPS said cannot be invoked because the premiums go to private insurance companies. The complaint also noted that the "traditional sovereignty of the states over the practice of medicine is destroyed" by the reforms.

AAPS wants the federal courts to enjoin the government from promulgating or enforcing insurance mandates and require HHS Secretary Kathleen Sebelius and Social Security Commissioner Michael Astrue to provide an accounting of Medicare and Social Security solvency.

Simon Lazarus, public policy counsel with the National Senior Citizen Law Center, reviewed the AAPS suit and called it "incoherent" and "baseless."

"I had not heard of this organization and now I am beginning to understand why," Lazarus told HealthLeaders Media. "They are complaining about physicians having to participate in Medicare Part A. Physicians don't have to participate in Medicare Part A. All of us know there are doctors who simply do not accept Medicare. There doesn't seem to be any factual basis for this and it also has nothing to do with the healthcare reform bill."

Lazarus says some complaints in the AAPS suit "echo" those in a suit filed last week by 13 state attorneys general, which challenges the constitutionality of the coverage mandate.

Lazarus says the AGs suits are clearly motivated by politics and not constitutional law. "This is a way of stoking and continuing to stoke public fears that healthcare reform is a massive and unprecedented invasion of personal liberty, when it is not," he says.

Lazarus says the argument for the constitutionality of the insurance mandate is simple. "Deciding not to buy health insurance is not a non-activity. It is a calculated decision to put off buying insurance or paying for healthcare until you think you need it," he says. "It is perfectly sensible for the government to say 'we want a universal coverage system, but to do that we need a universal buy in.'"

Lazarus says the mandate is "within the Congress' authority to regulate interstate commerce and it is certainly within Congress' power to design taxes and spend money for the general welfare," he says. "This kind of a system of expenditures and taxes is very common in our law."

Lazarus calls the lawsuits "wildly premature" and further evidence of a political motive. "The federal government is likely to hit these suits not by arguing the merits, but by saying they have no standing to raise speculative injuries to individuals," Lazarus says. "Only the individuals can raise those questions. None of these injuries have yet occurred, if they ever were to occur."


John Commins is a senior editor with HealthLeaders Media.

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