Samaritan is taking the offensive in New Mexico

Health care sharing is under attack in New Mexico, but Samaritan Ministries is on the offensive.

New Mexico’s insurance commissioner has decided that health care sharing ministries (HCSMs) are illegal insurance. In fact, the state has already forced other ministries to leave New Mexico.

Samaritan Ministries is not one of those. So far. But we are not waiting for that to happen. We have filed a federal lawsuit to protect our members there.

To paraphrase a joke frequently told by President Ronald Reagan, the attitude of government towards things that work is, “Tax it. If it keeps working, regulate it. Then, if it stops working, subsidize it.”

The first two steps—taxing it and regulating it—are all too frequently how some state insurance commissioners view HCSMs. The bureaucratic impulse is to impose the chains of insurance regulation on mutual sharing, regulation that comes with special taxes and fees imposed on the insurance business.

Health care sharing has been practiced among Christian communities for hundreds of years. For most of that history, government let well enough alone; it was understood that health care sharing was “not its business.”

But, as the areas of life which the government seeks to oversee have grown ever larger, the state seeks to become entangled with, control, and then push out independent entities—both secular and, especially, religious.

Not surprisingly, the attack on sharing started with an agency that is ubiquitous in American life—the Internal Revenue Service. In 1984, the IRS contended that a Mennonite church’s medical expense-sharing program was outside of its religious and charitable tax-exempt mission.

Thankfully, a federal court rejected the IRS’s argument. The court observed that “the purpose of the program unquestionably is to provide an organized means for the (church) community to implement the longstanding Mennonite belief in the pooling of resources for their members’ benefit ... as part of the church’s belief that it must ‘[b]ear ye one another’s burdens’ Gal. 6.2.”

The judges concluded that the program was for a proper religious, charitable tax-exempt purpose.

From the early 1990s to the present day, however, hardly a year has gone by without an insurance commissioner of some state seeking to shut down a legitimate HCSM. The September 2023 Christian Health Care Newsletter reported how the Samaritan Public Policy and Legal departments have worked to head off insurance regulators’ attacks by lobbying the states to pass “safe harbor” laws clarifying that HCSMs are not insurance. However, we have not always been able to beat the regulators to the punch in some states. In such situations, we then need to swing into action by changing laws or defeating the insurance commissioner in court.

Unfortunately, Samaritan Ministries has not been immune to government intrusions. In 2011, the state of Washington, without doing any investigating, claimed Samaritan was an insurance company and ordered us to stop sharing in that state. Through an incredible series of events, only 40 days later that order was overturned after a safe harbor law was passed by the state Legislature and signed by the governor, protecting health care sharing.

Nine years later, the state of Maryland, after two years of an investigation, claimed Samaritan was an unauthorized insurance company. After another 18 months of legal preparation, days before Samaritan's state trial was to occur, and as a federal civil rights lawsuit against Maryland was filed, the state’s insurance commissioner had an inexplicable change of heart (Proverbs 21:1), and Samaritan was allowed to continue sharing as “not insurance” in Maryland.

That brings us to our current challenge in New Mexico.

The insurance commissioner there has declared that all HCSMs are illegal insurance. Several ministries have been forced to leave the state and one has been fined several million dollars.

While Samaritan had not yet been ordered to leave the state, the Samaritan Board of Directors, at the recommendation of the ministry’s Legal department, decided to not wait until we were forced to fight a shutdown order in the state’s legal system, where the insurance commissioner would enjoy a home field advantage.

Rather we have gone on the offensive, filing a civil rights suit against New Mexico in federal court in December.

We first contend that a religious program of assistance totally dependent on member-to-member voluntary mutual aid is never “insurance.” However, if New Mexico wants to call health care sharing “insurance,” it may not use a mere label as the grounds to shut down Samaritan sharing, thus violating both the First Amendment’s guarantee of free exercise of religion and free speech right of expressive association with fellow believers. We have asked the court to order New Mexico to not subject Samaritan to its insurance code (in other words, to leave us alone) and to pay damages and attorney fees.

Although there have been more than 30 years of legal battles over whether health care sharing is insurance, incredibly a court has never ruled that religious people have a constitutional right to voluntarily share free from all the regulating burdens of health insurance. (These requirements can include dictating that non-Christians be allowed as members; mandating what must be shared, such as abortions; and forbidding direct member-to-member sharing.)

Our goal here is strategic: gain a victory that discourages other states from harassing Samaritan and other HCSMs.

It is quite possible that this legal battle will continue for several years, and we are prepared to take it to the U.S. Supreme Court.

We ask for your prayer support for:

• Wisdom for the legal team.
• Resources to fund the battle.
• Favor and justice from the judges.