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North Dakota

This article is part of the State Status and News series related to the Patient Protection and Affordable Care Act.

On 04-Apr-2010, the editors1) of various North Dakota newspapers began to encourage the state's Attorney General, Wayne Stenehjem, to initiate or join civil litigation opposing the PPACA. On 05-Apr-2010, an initial report2) stated that “Attorney General Wayne Stenehjem says North Dakota is joining a legal challenge to the recently approved federal health care law.” The initial report was thereafter republished elsewhere.3)

Attorney General Wayne Stenehjem will be joining 14 other states in a lawsuit challenging the recently passed health care bill.

Stenehjem said the lawsuit, spearheaded by Florida's attorney general, will focus on challenging aspects of the bill that mandate people carry health insurance.

“At some point, you have to say to the Congress, 'Enough.' They have stepped beyond their authority,” Stenehjem said.


The issue is a state one, he said, pointing to states like Massachusetts that require people to buy insurance, and Virginia, which passed a law barring people from the requirement. Because of that state law, Virginia is now also suing over reform in a separate lawsuit.

Stenehjem said he has not seen an issue generate as much public outcry as this one. He said his office got roughly 125 phone calls about the insurance mandate, only six of which asked him not to take action. Of the 350 or so e-mails his office got, roughly 90 percent encouraged him to sue.

But whether Stenehjem can sue on behalf of people who feel their rights are violated remains a question, said Josh Fershee, a constitutional law professor at the University of North Dakota.

Fershee said people not directly affected by a law can bring suit under the assumption that another's rights are violated, but in this case, the state may not be the correct vehicle.

“Can the state sue on behalf of citizens? Even if they're right, the state may not be the argument to bring it,” Fershee said.


He said it does not challenge portions of the law that protect consumers from caps on insurance plans or from being denied because of pre-existing conditions.

It will address what many are calling unfunded mandates through an expanded Medicaid program. Stenehjem said broadening the eligibility requirements will cost North Dakota “dozens of millions,” while other states will now need to spend billions more.

Stenehjem said it is a heavy burden, but the state stands to lose too much by opting out of the program, so much so that financial pressure turns into a requirement.


Beitsch, Rebecca. “N.D. Joins Lawsuit Over Health Care Bill”. Bismark Tribune. April 6, 2010. Available online as of 2010-04-06.

1) Editor. “To sue, or not to sue, that's the question”. Bismark Tribune (Editorial). April 4, 2010. Available online as of 2010-04-05.
2) Associated Press. “North Dakota Joins Challend to Federal Health Care Law”. Minnesota Public Radio NewsQ. April 5, 2010. Available online as of 2010-04-05.
3) Associated Press. “ND Joining Challenge to Federal Health Bill”. Businessweek. April 5, 2010, 1:54 PM ET. Available online as of 2010-04-05.