The New Massachusetts Health Law: Preemption and Experimentation

91 Pages Posted: 1 May 2007

See all articles by Edward A. Zelinsky

Edward A. Zelinsky

Yeshiva University - Benjamin N. Cardozo School of Law


Major features of the new Massachusetts health law are ERISA-preempted as forbidden regulation of employer-provided health care. This is a regrettable conclusion but one mandated by the ERISA Section 514 and the controlling case law. ERISA preempts the new law's mandate requiring covered Massachusetts employers to sponsor medical plans for their employees and to make "fair and reasonable" contributions to such plans. ERISA also preempts the new law's requirement that Massachusetts residents maintain "minimum creditable coverage" for health care as that requirement effectively mandates for Massachusetts employers the substantive medical coverage they must offer their employees. Employer-provided medical coverage is today central to health care in the United States. ERISA Section 514(a) precludes the states from experimenting with alternative approaches to health care, like the new Massachusetts health law, which impact employer-provided health care.

At a minimum, Congress should amend ERISA Section 514 to validate the new Massachusetts health law. More comprehensively, Congress should amend 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.

Keywords: health care, ERISA, federal preemption

Suggested Citation

Zelinsky, Edward A., The New Massachusetts Health Law: Preemption and Experimentation. William & Mary Law Review, Vol. 49, 2007-2008, Cardozo Legal Studies Research Paper No. 193, Available at SSRN:

Edward A. Zelinsky (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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212-790-0277 (Phone)

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