But even that provision did not survive. Under California’s severability framework, a remaining provision must be grammatically, functionally, and volitionally separable from the struck-down portions of a statute. The court focused on the volitional prong, which asks whether the legislature would have passed the provision on its own, and concluded it would not have. About 90% of the affected patients are already on public insurance. Telling them about all their options, including private coverage and the availability of premium assistance, might actually push some toward private plans, the opposite of what the legislature intended. That problem was made worse by the fact that the law’s anti-steering provision, which would have prohibited dialysis clinics from steering, directing, or advising patients regarding any specific coverage program option or health care service plan contract, had already been struck down at the district court level and was not challenged on appeal.
Ninth Circuit dismantles California law protecting insurance risk pools
