UPDATE: Cole County Judge hears lawsuit over Missouri health care measure

Tuesday, August 28, 2012 | 5:07 p.m. CDT

JEFFERSON CITY — A Missouri judge was considering Tuesday whether the Democratic secretary of state's summary of a health care measure passed by the Republican-controlled legislature and appearing on the November ballot accurately and fairly informs voters about the proposal.

The measure would bar Missouri officials from creating a health insurance exchange without approval from voters or the General Assembly. It also would prohibit state departments from taking federal money to set up the online marketplace intended to allow consumers to shop for and compare health insurance plans. The federal health care law requires states to create health insurance exchanges by 2014 or the federal government will run one for them.

Republican Lt. Gov. Peter Kinder and several Republican legislative leaders contend the ballot summary written by Secretary of State Robin Carnahan is unfair and misleading and filed a lawsuit asking for a new version. Carnahan's office defends its summary.

Cole County Circuit Judge Daniel Green did not immediately rule Tuesday after a hearing that continued for more than an hour. Green seemed to express at least some skepticism about the defense of the current version.

Missouri's Republican-controlled legislature approved the restrictions earlier this year and referred the proposal to the ballot. Lawmakers did not write their own summary, so it became Carnahan's responsibility.

Her summary states: "Shall Missouri law be amended to deny individuals, families, and small businesses the ability to access affordable health care plans through a state-based health benefit exchange unless authorized by statute, initiative or referendum or through an exchange operated by the federal government as required by the federal health care act?"

The Republicans contend that does not impartially or accurately describe the measure. They say the proposal gives voters a choice about how to proceed under the federal health care law. Attorney Jay Kanzler said the state cannot deny Missourians access to exchanges, regardless of what happens to the measure in the November election.

"To use the word 'deny' where something can never be denied is illogical unless its use was intended to mislead or influence the voters against the ballot proposal," Kanzler said.

Deputy Solicitor General Jeremiah Morgan, who represented the secretary of state's office, defended the summary. He said it was clear that in passing the measure, lawmakers are trying to "squeeze" efforts to establish a state-based insurance exchange and possibly a federal exchange.

Morgan argued that simply because a summary could be written differently — or even arguably more accurately — is not sufficient for the courts to strike down Carnahan's version. He said the secretary of state's version has "fair and sufficient language" that will put voters on notice about the probable effects of the law.

The Republicans suggested four alternative summaries in the legal challenge. Their favored option would state: "Shall Missouri law be amended to prohibit the Governor or any state agency, from establishing or operating state based health insurance exchanges unless authorized by a vote of the people or by the Legislature?"

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