TribBlog: Does Texas Already Mandate Health Insurance? [UPDATED]

Attorney General Greg Abbott is engaged in a major lawsuit challenging the constitutionality of new federal health care reform legislation, on the grounds that the United States does not have the authority to mandate that individuals buy health insurance.  Now, some political observers are saying that Abbott took the opposite position in the last legislative session.

"Abbott asked for and received the authority to order divorced parents to purchase health insurance for their children from a vendor of the state’s choosing if coverage was not otherwise available," says Democratic strategist Glenn Smith. "It is state-mandated insurance. Abbott clearly is not politically or ideologically opposed to such programs, further exposing the hypocrisy behind his cynical and dangerous lawsuit."

Smith is referring to an Abbott-promoted effort put forward in Senate Bill 66 by state Sen. Jane Nelson, R-Flower Mound. Here is the author's statement from the Senate Research Center analysis of that bill:

The goal of this bill is to ensure that children in the child support system are covered by health insurance.  Federal law requires parents in the child support system to provide health coverage for their children.  If no coverage is available through an employer or another source at a reasonable cost, a judge typically orders the non-custodial parent to pay "cash medical" support to the custodial parent to pay for health care.  Unfortunately, this does not always lead to actual coverage.

 S.B. 66 establishes an insurance pool for certain children in Title IV-D cases; authorizes the courts to ensure that eligible children have health coverage by ordering that the child be enrolled in the pool; and requires the obligor to pay premiums at a reasonable cost.

SB 66 was ultimately amended onto Senate Bill 865, an omnibus child support bill, which was passed by the Legislature and signed into law by Gov. Rick Perry. As a result, the insurance pool, known as ChildLINK, became Texas law. (Abbott's op-ed in the Austin American-Statesman following its passage can be found here. A request for proposals for a private insurance company to provide the plan can be found here.)

"This doesn’t address the issue of congressional power, but does go to some of the rhetoric and indignation about making people buy health insurance," says F. Scott McCown, executive director of the Center for Public Policy Priorities. "General Abbott supports making people buy health insurance for their children in Texas.  Why does he not also support making people buy health insurance for themselves and their children throughout the nation?"

Jerry Strickland, Abbott's communications director, says the ChildLINK program is not comparable because the federal government already required that parents provide health care coverage for their children through employer-provided coverage, a private plan, or cash medical support — thus the ChildLink initative does not establish a new mandate. "Rather," says Strickland, "to satisfy an existing federal requirement, it provides an alternative insurance program that will pool thousands of children together to lower the cost of their health insurance."

The attorney general's office also invokes the 10th Amendment, which says that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  Strickland says, "The Constitution does not delegate to the United States the power to mandate that all Texans buy insurance.  As such, any such power is reserved to the states.  That is why Texas can require drivers to purchase auto insurance, but the federal government cannot."

UPDATE: In addition to the questions raised above, here's a letter containing several more sent to Abbott by seven Democratic members of the Legislature: