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Judge to rule on health care suit in 30 days

AG Ken Cuccinelli speaks during a news conference after the July 1 hearing in Richmond (AP Photo/Richmond Times-Dispatch, Alexa Welch Edlund)

AP Photo/Richmond Times-Dispatch, Alexa Welch Edlund

(AP) A federal judge said yesterday that he expects to rule within a month on the Obama administration’s motion to dismiss Virginia’s lawsuit challenging the new national health care reform law.

U.S. District Judge Henry Hudson heard more than two hours of arguments on the same day a Virginia law took effect exempting state residents from being required to buy health insurance. The coverage mandate is a key part of the federal law and the focus of Virginia Attorney General Ken Cuccinelli’s lawsuit.

More than a dozen other state attorneys general have filed a separate lawsuit in Florida challenging the federal law, but Virginia’s is the first to go before a judge. The main point of the hearing was to determine whether Virginia has standing to sue, but the state’s claims the law is unconstitutional also were discussed.

If the lawsuit survives the first legal hurdle, Hudson will consider Virginia’s motion to immediately strike down the law Oct. 18. Cuccinelli said at a news conference after the hearing that the state has “a better than even chance of prevailing” at each step along the way to the lawsuit’s ultimate destination: the U.S. Supreme Court.

“Today we were protecting the U.S. Constitution and our state statute as my oath of office requires,” Cuccinelli said. He said if the insurance mandate survives, the federal government will have “unlimited power to force citizens to buy anything.”

Virginia claims in the lawsuit that Congress exceeded its authority under the Constitution’s Commerce Clause by requiring citizens to buy health insurance or pay a penalty. The state says refusal to buy something is commercial “inactivity,” not activity that can be regulated.

Ian Gershengorn, a deputy assistant U.S. attorney general, argued that the relevant commercial activity is the purchase of health care services, not insurance. He said uninsured Americans are shifting $43 billion a year in health care costs to others, and that is the problem the coverage provision seeks to correct.

Gershengorn said health insurance is unlike any other product because everyone is going to need medical care at some point — the only issue is how to pay for it. Even a healthy person can get hit by a bus, and “in this country we don’t allow a person to die at the emergency room door,” he said.

Virginia Solicitor General Duncan Getchell argued the federal government’s analysis “goes way beyond what the Supreme Court has ever said” about the exercise of power under the Commerce Clause.

“What we’re saying is you can’t draft a person into commerce so you can regulate him,” Getchell said.

Getchell also disputed the federal government’s assertion that the provision was enacted under Congress’ taxing authority, which a state cannot challenge. He said the purpose of a tax is to raise revenue, not to compel somebody to buy something they don’t want.

“If this works as intended, it won’t raise a dime,” said Getchell, who added that proponents of the legislation were careful not to call the penalty a tax as they scrambled for enough votes to get it passed.

Gershengorn said a tax can only be challenged by someone who has paid it, and that won’t happen until after the insurance requirement takes effect in 2014.

- By Larry O’Dell
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Associated Press writer Dena Potter contributed to this report.

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