By Tom Curry National affairs writer
updated 2/3/2010 11:36:15 AM ET 2010-02-03T16:36:15

Claim: State laws can thwart a federal mandate that would require people to buy health insurance.

The Democrats' insurance overhaul requires that individuals buy coverage if their employer doesn't provide it for them, or if they are not in a government-paid program such as Medicare. The Senate bill would, after a phase-in period, require those without coverage pay a tax penalty of $750 per year, up to a maximum of $2,250 per family, or a penalty of 2 percent of household income. The non-partisan American Academy of Actuaries says this penalty is too weak, which will limit its effectiveness in deterring "adverse selection," the tendency of sick people to buy insurance and of healthier people to go without coverage. Adverse selection creates insurance risk pools with too many sick people and too few healthy ones. But for critics of the insurance overhaul, the penalty is too high or is an unacceptable use of federal power.

Fact or fiction?
Fiction. This week, the Virginia Senate passed by a vote of 23 to 17 a bill saying that no resident shall be required to obtain or maintain insurance coverage. Five Democratic senators voted for the bill, including one who represents a northern Virginia district that President Obama won in 2008. According to the National Conference of State Legislatures, lawmakers in 28 other states are considering similar legislation. On November's ballot in Arizona will be a proposed amendment to the state constitution saying that no person or employer can be forced to participate in any health care system. "This is mainly political posturing," said Mark Hall, professor of law and public health at Wake Forest University. "Under the Constitution's Supremacy Clause, state law obviously cannot trump or override federal law." But the Virginia vote indicates political sentiment in a battleground state.

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