Policy Documents

The Federal and State Implications of Wyoming’s Health Care Freedom Amendment

Stephen R. Klein –
May 1, 2011

In the 2011 Legislative Session, the 61st Wyoming Legislature passed a referendum to amend the Wyoming Constitution known as the Health Care Freedom Amendment (―HCFA‖). The amendment will be placed on the ballot in the 2012 general election, and if ratified will pro-vide strong protection of individual liberty. The HCFA would codify a legal basis upon which to challenge the Patient Protection and Affordable Care Act (―PPACA‖), but it is just as important for the protections it would secure from state government.

The HCFA’s challenge against the federal PPACA combines a number of judicial threads to weave a strong tie of freedom. The first thread is ―Incorporation,‖ i.e., federal enforcement of the individual rights contained in the Bill of Rights against state and local governments. Building on this, we look to Judicial Federalism. This doctrine originally focused on making state constitutions more protective of the rights described within the federal Bill of Rights, but has expanded to include rights that are only recognized in state constitutions. When a state provides more protection for a federal constitutional right, there is no ground to appeal a state constitutional question to the United States Supreme Court.

These traditions must be considered in light of the Ninth and Tenth Amendments to the United States Constitution, which provide that the Bill of Rights is not the end-all be-all of individual rights; citizens need not amend the U.S. Constitution in order to protect individual rights within their own state. These three threads, combined with the HCFA, should protect an individual’s health care choices from both federal and state infringements.