A nearly perfect gauge of the wisdom and importance of a policy proposal is how loudly special-interest groups howl in opposition. By that measure, Proposition 101-the Freedom of Choice in Health Care Act-must be a great idea.
The initiative would amend the state constitution--not to change anything about Arizona's present health-care system--but to protect against future schemes that would restrict individuals' "freedom of choice of private health care systems or private plans of any type," the "right to pay directly for lawful medical services," or freedom to participate or not participate in health insurance programs. Essentially it would codify the choices we can exercise today.
Central in the opposition's campaign is the state's Medicaid program, the Arizona Health Care Cost Containment System (AHCCCS). A memorandum by AHCCCS director Anthony D. Rodgers-listing Governor Janet Napolitano's name on the letterhead-parades a series of what I call the "mighty mights": terrible things the initiative might do to AHCCCS. Similar legal "analyses" are being widely circulated, and enormous pressure is being placed on private health insurance companies that participate in AHCCCS to fund opposition to the initiative.
The claims are based on a tortured interpretation of the proposal's language. But when Arizona courts interpret initiatives, they do not indulge flights of fancy; rather, they attempt in good faith to apply the framers' intent. That intent is unambiguous: as the initiative's own website proclaims, "The Freedom of Choice in Health Care Act will not in any way impact the funding of, or functioning of AHCCCS."
What AHCCCS should be worried about is the state's legal ban on using taxpayer money to influence voters. We sent AHCCCS a public records request regarding the preparation and distribution of its "unintended consequences" memorandum. If the agency is engaged in electioneering, the consequences will be anything but unintended.
Clint Bolick is the director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation.
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