This November, Ohioans will vote on a proposed amendment to the Ohio Constitution (“Ohio Amendment”), which purports to exempt Ohio from certain aspects of the federal “Patient Protection and Affordable Health Care Act of 2010” (the “Health Care Act”), the national health care overhaul enacted last year. Here is a primer on the Ohio Amendment.

The Text and Purpose of the Ohio Amendment

If passed, the Ohio Amendment would add Section 21 to Article I of the Ohio Constitution. The full text of the proposed constitutional amendment is as follows:

Preservation of the freedom to choose health care and health care coverage

Section 21(A) No federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system. Section 21(B) No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health insurance.

Section 21(C) No federal, state, or local law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.

Section 21(D) This section does not affect laws or rules in effect as of March 19, 2010; affect which services a health care provider or hospital is required to perform or provide; affect terms and conditions of government employment; or affect any laws calculated to deter fraud or punish wrongdoing in the health care industry.

Section 21(E) As used in this Section,

(1) “Compel” includes the levying of penalties or fines.

(2) “Health care system” means any public or private entity or program whose function or purpose includes the management of, processing of, enrollment or individuals for, or payment for, in full or in part, health care services, health care data, or health care information for its participants.

(3) “Penalty or fine” means any civil or criminal penalty or fine, tax, salary or wage withholding or surcharge or any named fee established by law or rule by a government established, created, or controlled agency that is used to punish or discourage the exercise of rights protected under this section.

The Ohio Amendment’s purpose is to nullify in Ohio one of the most controversial features of the Health Care Act — the mandated purchase of health insurance. The Ohio Amendment would also prohibit Ohio from enacting a law requiring some minimum level of insurance coverage.

The Ohio Amendment Will Likely be Challenged if Passed

Passage of the proposed amendment to the Ohio Constitution promises to be only the first chapter in a battle over its validity. Proponents of the federal Health Care Act would likely seek to have the Ohio Amendment declared unenforceable as being inconsistent with the Supremacy Clause of the United States Constitution.

The Supremacy Clause states that the federal Constitution and the federal laws “shall be the supreme Law of the Land,” binding all states to follow federal law over inconsistent provisions of state law. Proponents of the federal law would therefore argue that Ohio is bound by the Health Care Act regardless of what the Ohio constitutional amendment purports to do.

On the other hand, proponents of the Ohio Amendment would likely counter that the Health Care Act is itself unconstitutional because the law exceeds the power of the federal government. Accordingly, the argument goes, the Health Care Act cannot be the “supreme Law of the Land.”

A group of federal lawsuits challenging the federal Health Care Act have already been winding their way through the courts, one or more of which will ultimately (in all likelihood) be decided by the United States Supreme Court.