Differing Diagnosis: The Debate Over Prop 101, aka the Freedom of Choice in Health Care Act

Dave Devine wrote about Prop 101, the Freedom of Choice in Health Care Act, in the latest edition of Tucson Weekly:

Proposition 101 on November’s ballot contains only a few dozen words, but those words are causing considerable controversy about their legal meaning.

Supporters claim this proposed amendment to the Arizona Constitution would protect individual health-care choices involving doctors and treatments. Opponents argue the measure is a sham which will result in chaos and higher costs to taxpayers.

Using just two sentences to explain itself, the proposition prohibits the adoption of any law that “restricts a person’s freedom of choice of private health-care systems or private plans of any type.”

Additionally, Prop 101 forbids any legislation which interferes “with a person’s or entity’s right to pay directly for lawful medical services … .”

Finally, the measure bans laws that would “impose a penalty or fine, of any type, for choosing to obtain or decline health-care coverage or for participation in any particular health-care system or plan.”

“I really don’t know what they’re talking about,” reflects Eve Shapiro of the proposition’s language. Shapiro is the Tucson physician who spearheaded two successful ballot propositions to expand health-care coverage for low-income residents of Arizona. “This is a change to the state’s Constitution, and we don’t know its consequences. It could affect state and federal (health-care) programs, because the term ‘choice’ is so ill-defined.

“Our health care system is a big mess,” Shapiro continues, “but this measure doesn’t do anything to address that issue.”

Dr. Eric Novack from Glendale is heading up the campaign to approve 101 and agrees medical reform is desperately needed. But before that happens, Novack insists: “The cornerstone (of this change) should be the right of an individual to protect their health-care choices.

“If we don’t protect the right of the individual to make (health-care) choices,” Novack says of future reform measures, “those rights will be lost.”

Because of the vast sums of money involved in health-care reform, Novack believes government bureaucrats and special interests will do away with individual medical choices during the legislative process.

However, some anti-abortion advocates have raised questions concerning passage of the proposition. They fear the state could no longer forbid the use of public money to pay for abortions for pregnant minors in foster care or women using the Arizona Health Care Cost Containment System (AHCCCS), the state’s medical insurance program for low-income people.

Novack rejects that allegation, pointing out that lawyers for several anti-abortion groups vetted the language of 101. He also stresses that an exhaustive legal analysis prepared on the proposition showed it would have no substantive impacts on AHCCCS in general.

On the other hand, a review of the proposed measure by the law firm of Lewis and Roca comes to a much different conclusion. Their critique, done for the firm’s clients, states: “The argument could be made that it applies to AHCCCS and the plans which deliver benefits for the AHCCCS system.”

Novack calls opposition to the proposition “fear-mongering” while adding, “Opponents are just making things up.”

Indicating that an unsuccessful push for medical choice was first introduced at the nation’s founding, Novack says the passage of Proposition 101 would be groundbreaking. “This has never been done anywhere,” he declares.

For his part, Tucson Democratic state Rep. Phil Lopes hopes the effort fails. “This will make things worse than the status quo,” he says of 101.

In the past, Lopes has sponsored health-care reform legislation in the Republican-dominated Arizona Legislature. He managed to get a hearing on the bill earlier this year and promises to introduce it again during the next session.

It is health-care reform like Lopes’ effort, which he calls a “single-payer system of the Canadian style,” which Tom Jenney, executive director of the Arizona Federation of Taxpayers, is worried about as he supports Proposition 101.

“Under that system,” he suggests of Canada’s national health-care program, “you end up with high-cost and low-quality medical care. … Adoption of 101 will prevent future (state) legislation that interferes with the doctor-patient relationship or the patient’s relationship with an insurance company.”

Jenney rejects arguments that the proposition could cause unintended consequences. “It doesn’t have any impact on current programs,” he believes. “My understanding is the legislation is prospective. It will prevent future legislation to restrict (health-care) choice.”

As for those opposing the measure, Jenney says they are using the same “standard operating procedures” used in every election to convince people to vote against a ballot measure: “Our argument is that it will prevent bad health-care systems in the future.”

For her part, Linda Brown, of the Arizona Advocacy Network, worries about the impacts of 101. She believes the consequences of the proposition could be dramatic and expensive.

“The way it is worded, it looks like Arizonans on AHCCCS will be required to be free to choose any doctor or hospital they want,” she says. Since that isn’t presently the case, Brown estimates: “That could end up costing taxpayers unending amounts of money.”

Brown points out that passage of the proposition would limit future health-care-reform options. “Arizonans don’t like to be lied to or duped,” she says, “but the backers of 101 are doing that. … This proposition is designed to protect the profits of those in the medical industry.”


6 Responses

  1. Goldwater Institute Investigating Possible Violations Of Election Laws By AHCCCS Over Prop. 101 Memo
    September 24, 2008

    Goldwater Institute Investigating Possible Violations
    Of Election Laws By AHCCCS Over Prop. 101 Memo

    PHOENIX, Arizona (September 24, 2008) — The Goldwater Institute served a Freedom of Information Act request to AHCCCS on Tuesday, demanding details regarding the cost and distribution of its “unintended consequences” memo regarding Proposition 101.

    The Center for Constitutional Litigation is actively investigating whether the state’s ban on the use of taxpayer money to influence voters and elections is being violated. State agencies are not allowed by law to participate in elections, and the Center is concerned that the memo by AHCCCS sent out last week concerning Proposition 101 did just that.

    The memo falsely claimed that Proposition 101 would somehow affect AHCCCS, claims that were debunked last week by an independent legal analysis by the Goldwater Institute.

    “The law is clear — government agencies may not spend taxpayer money to try to influence elections,” said Clint Bolick, Director of the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute.

    Dr. Eric Novack, chairman of Medical Choice for Arizona, the group supporting Proposition 101, said the Goldwater Institute’s investigation will ensure that taxpayer dollars are not being misused and the trust of Arizona citizens is not being violated.

    “We’re pleased that the Goldwater Institute will be bringing its expertise in public policy issues to the table to ensure no impropriety has taken place by a state agency, and if impropriety is found, to make sure the situation is addressed and corrected,” Novack said. “It has been our concern from the beginning that big government agencies and big-money special interests would fight against choice in health care, and we’re ready for that fight. We just want to make sure the fight is a fair and legal one.”

    Proposition 101 will preserve and protect the rights of individuals to make their own health care and health insurance choices.

    Currently, many lobbyists and special interest groups in Arizona and around the country are promoting policies that would limit or even eliminate the ability of people to have choices when seeking out health care for themselves and their families.

    This initiative will guarantee the right of Arizonans to make their own health care choices. Lobbyists and special interests will see their power to control and dictate health care choices limited. The language of the initiative is simple:



  2. I listened to Prop 101 chairman on the radio yesterday morning (John C. Scott show). He made perfect sense and completely blew out of the water the arguments against the initiative.

    Where are the quotes from the No chairman, John RIvers of the hospital association? What is the No chairman hiding from?

    Why is an out of state HMO that only has a government contract in Arizona giving money to the no campaign?

    I even checked out the yeson101.com site– which has the legal arguments documenting why Prop 101 does not impact AHCCCS.

    This one is a no-brainer — I am voting YES on prop 101.

  3. Prop. 101 Supporters Will File Lawsuit Against AHCCCS This Week

    Believe Government Agency Broke Law By Spending Taxpayer Dollars Campaigning; Opinion By Then-AG Napolitano Could Mean Trouble for AHCCCS

    PHOENIX, Arizona (October 1, 2008) — Supporters of the Medical Choice for Arizona initiative will file a lawsuit this week in Superior Court against the Arizona Health Care Cost Containment System, alleging that AHCCCS broke state law by actively campaigning against the ballot initiative.

    Additionally, Prop. 101 supporters are investigating the legality of contributions to the “no” campaign by big health plans with contracts with AHCCCS or other government agencies.

    It’s the latest in a series of blows to the opposition campaign, including an investigation by the Goldwater Institute into the actions of AHCCCS in relation to Prop. 101 and two legal analyses showing that opposition claims against Prop. 101 are without merit.

    State law dictates that government agencies are not allowed to participate in political campaigns. However, AHCCCS Director Anthony Rodgers recently sent out — on AHCCCS letterhead — a memo on “unintended consequences” of Prop. 101 that supporters believe was a clear attempt by the agency to campaign against the proposition.

    Additionally, Banner Health CEO Peter Fine last week sent to Banner employees an e-mail urging them to vote no on Prop. 101, and attached as reference the “unintended consequences” memo.

    “If that memo wasn’t meant to be a campaign tool, you could have fooled anyone who read Peter Fine’s e-mail,” said Dr. Eric Novack, chairman of Medical Choice for Arizona. “This is a taxpayer-funded document that is being used as campaign propaganda by the no side, and because of its inflammatory language and claims — which have twice been independently debunked by legal analyses — AHCCCS’ claim that it is not a campaign document certainly doesn’t pass the ‘smell test.’”

    The lawsuit is being finalized, and will be filed by the end of the week. It will seek an injunction against unauthorized conduct relating to Prop. 101 and potential damages as a result of AHCCCS’ actions.

    Supporters of the Medical Choice for Arizona act are also researching whether the statutes prohibiting government agency participation in elections could also apply to corporations that have significant government contracts — making them, effectively, proxies of the state.

    “It’s clear that big government and big health plans are driving the ‘no’ campaign — we saw that last week when an out-of-state company with a big AHCCCS contract became the first contributor to the opposition,” Novack said. “The voters of Arizona deserve to know whether the participation of these organizations is legal, and if it is not, to make sure those organizations comply with state law.”

    So far, SCAN Health, a California-based company with a large contract with the state, has been the largest contributor to the “no” campaign with a $50,000 contribution last week.

    Ironically, it may be the words of Governor Janet Napolitano that should be most worrisome to AHCCCS officials. She wrote an opinion in 2000, while serving as Attorney General, that municipal government agencies are prohibited from “using resources ‘for the purpose of influencing the outcome of elections.’”

    “Even educational materials that do not expressly advocate for or against a ballot issue may fall within this prohibition, depending on the specific facts and circumstances,” Napolitano wrote in the opinion.

    Proposition 101 will guarantee the right of Arizonans to make their own health care choices. Lobbyists and special interests will see their power to control and dictate health care choices limited.

    Visit http://www.YesOn101.com for more information.

  4. Proposition 101 would protect an individual’s choice to pursue private health care coverage. It would also prevent fines from being levied on individuals who decline health care coverage. Proponents believe that the “Freedom of Choice in Health Care Act” would avoid the impositions on personal freedom that are common in socialized health care systems.


  5. Thier are alot of poor people and seniors on ahcccs and the disabeled as well.What will happen to these people if ahcccs is no longer around?These people have ahcccs because they cannot afford insurance on thier own.We need to let our governments know that freedom of choice is in america and anyone who takes that away is wrong doing.Protect the people,s right to choose in health care .So many of us are on ahcccs right now I don,t want them to take that away from us.

  6. Prop. 101 allows the Legislature to pass subsidies to assist people in paying for health care. It does nothing to prevent the expansion of “Kids-Care” or AHCCCS. It is absolutely not intended — and not able — to affect public health care systems or plans such as AHCCCS and Medicare. Prop. 101 protects only private health care decisions.

    Prop. 101 is not “for” or “against” universal health care. Prop. 101 is not a “health care reform” measure. Prop. 101 is concerned with just one goal: protecting our right to make our own health care decisions.


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