Protest to Medicaid expansion goes before makeshift Supreme Court

Jun. 16--A makeshift Oklahoma Supreme Court is set to hear arguments Tuesday about a proposed state question to expand Medicaid to cover more of Oklahoma's uninsured.

A petition filed in April to put the question on a state ballot has been stalled by a protest from a conservative think tank called the Oklahoma Council of Public Affairs.

The court will hear from attorneys for the think tank, the group that filed the petition and the Oklahoma attorney general's office.

Only five Supreme Court justices will be on the bench. They will be joined by four substitutes, covering for two vacancies on the court and two justices who recused themselves from the case.

Justices Tom Colbert and James Edmondson did not give public explanations for not hearing the protest. Edmondson is the brother of Drew Edmondson, the 2018 Democratic gubernatorial nominee, who vowed during his campaign to expand Medicaid.

Retired Supreme Court justice John Reif and three judges on the Oklahoma Court of Civil Appeals will fill out the court for the protest.

The court will be looking at two aspects of the petition: whether the summary, or gist, that would be presented to potential signers accurately reflects the petition and the implications of expanding Medicaid; and whether the Oklahoma constitution would allow for a new provision in which the federal government dictates state spending.

The Oklahoma attorney general's office -- which did not take a position on the policy question of expanding Medicaid -- agrees that the summary is flawed and needs to be rewritten to reflect the way the federal government calculates Medicaid eligibility.

The petition's summary says Medicaid would be expanded to those with incomes at or below 133 percent of the federal poverty level "as permitted under the federal Medicaid laws."

However, the federal formula essentially stretches eligibility to 138 percent of the federal poverty law. The Oklahoma Council of Public Affairs, based in Oklahoma City, and the attorney general's office agree that the petition summary needs to use the 138 percent figure to be accurate.

Though agreeing about the gist, the attorney general's office urged the justices to reject the council's arguments that putting Medicaid expansion into the state constitution would violate the constitution's separation of powers provisions.

"The Constitution explicitly grants the people 'the right to alter or reform the [government] whenever the public good may require it,'" the attorney general's office told the court.

The Supreme Court won't have a specific deadline to rule on the petition.

Amber England, the spokesperson for a newly-announced coalition backing the petition, said she's confident the petition would survive the protest.

But, she said, "Should we have to refile with a different gist, we are absolutely committed to doing that. The good thing is we're still early in the process and we haven't gone out and collected those signatures yet.

"Whatever the court says, we're going to work very, very hard to get this on the ballot so it can be decided by voters sooner rather than later."

Source of petition not clear

The petition seeks to put the question before Oklahoma voters in the next general election, which would be November 2020. Supporters would have to gather nearly 178,000 signatures to qualify the question for the ballot.

The petition was filed on behalf of two Oklahoma residents, who say it would help them personally.

The source of the petition, which was filed in April, is not clear. The petition was filed and is being defended by one of the most prominent law firms in the state, Crowe and Dunlevy.

A group called Oklahoma Decides Healthcare announced its existence last week via press release, calling itself a coalition of health care providers and advocates and business executives. No names were given.

England, a consultant and former lobbyist for education causes, said the effort was "funded by Oklahomans who care about" expanding Medicaid to cover more people.

The group is organized as a 501(c)(4), or "social welfare" organization, under the federal tax code, meaning it does not have to disclose its donors. England said the group's finances would be transparent once the question is on the ballot and state campaign reporting requirements are in effect.

The state's largest health care provider associations are backing Medicaid expansion and filed a brief with the Supreme Court urging approval of the petition. Those groups say they are not currently backing the petition effort financially.

"The Oklahoma Hospital Association has long supported bringing our federal tax dollars back to the state for the purpose of reducing the number of uninsured persons and saving rural health care," said Patti Davis, president of the Oklahoma Hospital Association.

"While we are not leading the ballot initiative and have not made any contributions to date, we do plan to be an integral part of the effort, including financially."

The Oklahoma State Medical Association said, "OSMA has not made any financial contributions to this effort at this time.

"However, we will continue to strongly advocate for efforts ensuring all who need it have access to health care. This includes working with stakeholders in the medical community, patient groups and those at the Capitol to find a solution that improves health for all Oklahomans."

The Oklahoma Council of Public Affairs, which is challenging the petition, is also organized as a non-profit. Its latest tax return available online does not list donors, though it has several named board members, many who are frequent contributors to conservative candidates and causes.

Oklahoma, which has the second highest rate of uninsured, behind Texas, is one of 14 states that has not expanded Medicaid under the Affordable Care Act. Since Medicaid expansion went into effect in 2014, the state has forfeited an estimated $1 billion a year in federal funds.

In recent years, some conservative states in which legislatures shunned expansion have approved it through ballot initiatives. Expansion has been gaining some momentum in Oklahoma, though not enough to get legislation approved this year.

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