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Abstract

The Employee Retirement Income Security Act of 1974 (ERISA) preempts major features of the new Massachusetts health law. Although regrettable, this conclusion is mandated by ERISA's statutory terminology and the controlling case law. Other states, in fashioning their health care policies, are looking at elements of the new Massachusetts law. Just as ERISA preempts the individual and business contribution mandates of the Massachusetts statute, ERISA will preempt any similar provisions adopted by other states.

Because state experimentation with health care is particularly desirable today, Congress should, at a minimum, amend ERISA to validate the new Massachusetts health law. More comprehensively, Congress should amend ERISA Section 514 to permit all states to experiment with health care reform insofar as such experiments relate to employer-provided health care. Ideally, Congress should repeal section 514 and thus abolish altogether the jurisprudence of ERISA preemption.

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