State attorney generals have historically functioned as advocates for their citizens, especially when it comes to health issues. In 1994, Mississippi’s Attorney General Michael Moore filed the first lawsuit demanding that tobacco companies compensate the state for Medicaid costs associated with tobacco-related illness. More than 40 other state attorneys eventually filed similar lawsuits, leading to the Master Settlement Agreement in 1998 that required the major tobacco companies to pay a total of $206 billion to the states and also led to restrictions in how cigarettes are marketed.

Lainie Rutkow, assistant professor at Johns Hopkins’ Bloomberg School of Public Health, along with coauthor Stephen Teret (also at Hopkins), write in the new issue of JAMA  that state attorneys general are “powerful but underrecognized participants in establishing and refining health policy.” Rutkow mentions other health advocacy efforts undertaken by state attorneys general including preventing pharmaceutical companies from promoting off-label uses of their drugs and investigating improper health claims by food manufacturers. Just last year, New York’s Attorney General Andrew Cuomo investigated the charge that Igenix, a subsidiary of United HealthCare, was instructing insurers to underpay “usual and customary” charges for medical procedures by some 10-28%; resulting in consumers shelling out excessive out-of-pocket medical expenses. Also in 2009, Connecticut’s attorney general Richard Blumenthal began an investigation into “erratic and excessive” pricing of Tamiflu, a drug that can shorten the duration of flu symptoms, just as the recent H1N1 epidemic reached its peak.

With this history of advocacy, it now seems so incongruous that state attorneys general (along with a handful of governors) from 21 states have filed lawsuits charging that the Patient’s Care and Affordable Health Care Act is unconstitutional and are demanding its repeal. The Act, which would cover some 30 million Americans who are currently uninsured and offers relief from medical bankruptcy to millions more, would seem to be squarely in the public’s interest.

Within minutes of the Affordable Care Act becoming law in March, some 13 state attorney generals had filed lawsuits in Pensacola, Florida challenging the constitutionality of the individual mandate, the federal expansion of Medicaid and other features of the legislation. Since then, seven more states have filed suit in Florida and a judge reviewing the case this month signaled that his court would be unlikely to dismiss the challenge. Virginia’s Attorney General, Ken Cuccinelli, immediately filed his own suit, claiming that the recently-passed Virginia Health Care Freedom Act bars state residents from being forced to buy health insurance and clashes with the federal mandate; in August a judge agreed to hear this case despite the federal government’s efforts to have it dismissed. The goal: Take the constitutional issues all the way to the Supreme Court.

Speaking at a recent Tea Party rally on the Washington mall, Cuccinelli—whose agency has also challenged global warming and gay rights—called state attorneys general “the last line of defense" in protecting the U.S. Constitution from the over-reaching tendencies of the federal government. Referring to the Florida suit, Rutkow and Teret write in JAMA; “the lawsuit appears to be crafted to fuel national controversy and ultimately overturn legislation that provides millions of uninsured individuals with health care coverage.” According to Rutgow, although the current media attention on state attorneys general has portrayed them as being anti-health care reform, historically they have been “very effective” in advocating for beneficial health policy. “Because they sit at the intersection of a state’s legislative, executive and judicial branches,” state AGs “have a powerful bully pulpit from which to bring attention to health issues,” she says.

What is driving these AGs, who have the potential to do so much good for public health, to try and thwart health reform?

It seems that partisan politics are currently trumping this historical concern for public health. In total, 20 of the attorney generals and governors who have filed suit are Republicans. One attorney general, Buddy Caldwell of Louisiana, is a conservative Democrat serving alongside outspoken Republican Governor Bobby Jindal and he faces reelection next year. There were reports that Caldwell agreed to be the lone Democrat in the lawsuit in exchange for a guarantee from Jindal that jobs in his agency wouldn’t be lost when the state cuts 5,000 employees from its bankroll. In the case of Florida—the first state to file suit—Attorney General Bill McCullum, a Republican, made (a now unsuccessful) run for governor leading to charges from Democrats in the state that his suit was also politically motivated. In May, seven more states (Indiana, North Dakota, Mississippi, Nevada, Arizona, Georgia and Alaska) added their names to the Florida challenge to federal health care legislation. Of the seven new states, attorneys general in just Indiana, Alaska and North Dakota filed the lawsuits. The other four states had their Governors file the suits; in all of them except Alaska, the state attorneys general are Democrats and opposed the legal challenge.

In Arizona, for example, Republican Governor Jan Brewer signed a bill in April that gives her the authority to sue the federal government over the health reform law, even though the state's attorney general had refused to do so. In Georgia, then-Attorney General Thurbert Baker, a Democrat (who stepped down to mount an unsuccessful run for governor), refused the Republican governor’s request to join the Florida suit and was threatened with impeachment by state legislators. Eventually, the Georgia governor appointed a “special attorney general” who would join the suit in Baker’s place. Rhode Island’s governor urged his state attorney general, Patrick Lynch, to file a suit challenging the constitutionality of the Affordable Care Act but Lynch wrote back that he had “no intention of filing a lawsuit” because he believes that “quality health care should be a right of all citizens, not the privilege of some citizens.”

Meanwhile, little media attention has focused on the governors who condemn the actions of their own Attorney Generals: Gov. Chris Gregoire of Washington, along with Gov. Jennifer Granholm of Michigan, Gov. Edward Rendell of Pennsylvania and Gov. Bill Ritter of Colorado have all filed amicus (or Friend of the Court) briefs supporting state adoption of health reform legislation—in defiance of their own chief attorneys. AGs in Oregon, Iowa and Vermont (who all oppose the lawsuits) said they would file amicus briefs as well in support of the federal legislation.

“[T]he action of the attorney general in filing [a lawsuit challenging the legality of the health care reform legislation] does not represent the governor, the insurance commissioner, legislative leadership, or thousands of Washingtonians in our state that would benefit from national health care reform," says Gregoire. "We need to move forward. This legislation not only provides necessary care to millions of Americans who desperately need it — it protects our taxpayers from the skyrocketing costs of health care."

The fact is, most constitutional law experts believe that these lawsuits have little chance of succeeding. In Florida, states are charging that Congress does not have the authority under the Constitution to require all U.S. residents to obtain health insurance and that states cannot be forced to spend more on Medicaid for additional low-income families who will become eligible for benefits under the health law. In Virginia, the state’s argument that state law supercedes federal law is even weaker, according to Newsweek:

“[C]onservatives ranging from President Reagan's solicitor general Charles Fried to former federal-appeals-court judge Michael McConnell have blasted the new state laws that let states opt out of reform as legally ‘meaningless,’ ‘preposterous,’ and ‘absurd.’” In the Newsweek piece, Erwin Chemerinsky, dean of the UC Irvine School of Law, points out that, “as with the battle over desegregation in the '50s and '60s, ‘states can't just block the implementation of federal laws.’”

To be fair, the Republican reflexive need to “just say no” to any Obama-derived legislation is not the only reason for the states’ challenge to health reform. The growing state budget crisis has some officials running scared from all new potential spending. Alan Weil, executive director of the National Academy for State Health Policy, told NPR ; “States such as Arizona and Alabama, which historically haven't provided broad coverage, have reason to worry about how they're going to bring their administrative and health system capacity up to speed — and how they're going to pay for it.

"If you've been running a fairly basic program and you imagine a major influx of people coming into Medicaid, you're wondering who is going to provide care to those people and how are we even goi
ng to sign them up," says Weil. "The magnitude of the task is definitely greater in the states that have not taken those steps, to learn a lot of lessons about expanding coverage."

For example, Louisana’s attorney general Caldwell says he opposes the legislation because it will force Louisiana to cover more than 360,000 more Medicaid patients in just the first year alone at a cost of  $345 million each year. But a recent report by the Kaiser Family Foundation’s Commission on Medicaid and the Uninsured estimated Louisiana’s costs from 2014-19 (5 years) to be only $536 million. Meanwhile, Louisiana State Rep. Regina Barrow (D) predicts that services provided by the Affordable Care Act could save Louisiana close to $500 million. It’s clear that coming to agreement on the economic effects of health reform is impossible in this ultra-partisan environment. Spending precious time and resources on a seemingly futile constitutional fight over health reform legislation seems anathema to the hard work required of states as they get exchanges set up, expand Medicaid and configure other changes to bring health care benefits to millions of uninsured residents by 2014.

In the end, when it comes to the role of state attorney generals in health policy, Rutkow says she wanted to write the JAMA commentary because the current battle over health reform obscures the “tremendous potential” these officials have in effecting positive change. In a longer white paper, commissioned by the Robert Wood Johnson Foundation, Rutkow, along with Teret, who both are with the Center for Law and the Public’s Health at Hopkin’s Bloomberg School of Public Health, write: “Due to their wide-ranging powers, connections to multiple government actors, and ability to act in concert, SAGs [state attorneys general] are uniquely positioned to protect and promote the public’s health.”

But, the authors add; “Because most SAGs are elected, their actions may be swayed by the political will of the voters. This may make an SAG more or less likely to vigorously pursue a particular public health issue, depending on its expected popularity with the electorate. Similarly, if an SAG is working with an unpopular governor, he or she may take actions to create perceived distance from the governor. Here, again, the SAG may choose to ignore or champion a particular public health issue to curry favor with voters.”

After reviewing many of the significant policy coups—the tobacco settlement; blocking the off-label marketing of drugs; requiring honest food labeling; etc.—Rutkow and Teret call state attorney generals “promising partners” for public health researchers and officials when it comes to developing new, beneficial policy. That has certainly seemed to be the case in the past. But when it comes to this latest health “advocacy”—the attempt by some attorneys general to block the new health reform legislation—these partners are not nearly living up to their promise to protect the health of their citizens.