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This amicus brief was filed before the Supreme Court in the Affordable Care Act (ACA) litigation on behalf of Health Care for All and other Massachusetts organizations that have been involved in the implementation of Massachusetts’ health 2006 health reform legislation. The brief argues that Massachusetts’ health reform law, upon which the ACA is modeled, has been very effective in expanding insurance coverage within the State, but it required substantial federal support, through a Medicaid waiver, to achieve its success. In addition the Commonwealth’s experience illustrates that the health insurance and health care markets are inherently interstate commerce and that decisions by out-of-state residents to forgo insurance, the very decisions subject to the ACA’s minimum coverage provision, have limited the State’s ability to improve its health care system through the elimination of uncompensated care. The brief reviews the impact of the health care services provided to out-of-state tourists, commuters, and residents on the State’s health care system, and argues that similar or greater externalities would face any state seeking to reform its own health care system. Only the federal government has the power to address these externalities.


Professor Kevin Outterson, Health Care, Technology and Federalism, 103 W. Va. L. Rev. 504 (2001) cited in this brief.

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