Overcoming ERISA as an obstacle: the Ninth Circuit's approval of San Francisco's fair share legislation

State and local legislatures in more than twenty states have considered enacting fair share laws. Fair share laws typically require employers of a certain size either to spend a designated percentage of their total payroll costs on health insurance for their employees or pay into a state fund for uninsured individuals. Such laws have been challenged in the federal courts, ultimately resulting in differing decisions. In 2007, the Fourth Circuit Court of Appeals affirmed the lower court's decision to strike down the Maryland Fair Share Act, holding it was preempted by the Employee Retirement Income Security Act (ERISA). The Fair Share for Health Care Act in Suffolk County, NewYork succumbed to a similar fate. However, in the Ninth Circuit, San Francisco's Health Care Security Ordinance survived ERISA preemption. This article analyzes the Fourth and Ninth Circuit decisions and explores the potential effects of the differing outcomes on healthcare reform.