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The Constitutionality of Medicare Drug-Price Negotiation under the Takings Clause
Published online by Cambridge University Press: 13 March 2024
Abstract
In recent months, pharmaceutical manufacturers have brought legal challenges to a provision of the 2022 Inflation Reduction Act (IRA) empowering the federal government to negotiate the prices Medicare pays for certain prescription medications. One key argument made in these filings is that price negotiation is a “taking” of property and violates the Takings Clause of the US Constitution. Through original case law and health policy analysis, we show that government price negotiation and even price regulation of goods and services, including patented goods, are constitutional under the Takings Clause. Finding that the IRA violates the Takings Clause would radically upend settled constitutional law and jeopardize the US’s most important state and federal health care programs.
- Type
- Columns: Health Policy Portal
- Information
- Journal of Law, Medicine & Ethics , Volume 51 , Issue 4: Medical-Legal Partnerships: Equity, Evaluation, and Evolution , Winter 2023 , pp. 961 - 971
- Copyright
- © 2024 The Author(s)
Footnotes
About This Column
Aaron Kesselheim serves as the editor for Health Policy Portal. Dr. Kesselheim is the JLME editor-in-chief and director of the Program On Regulation, Therapeutics, And Law at Brigham and Women's Hospital/Harvard Medical School. This column features timely analyses and perspectives on issues at the intersection of medicine, law, and health policy that are directly relevant to patient care. If you would like to submit to this section of JLME, please contact Dr. Kesselheim at akesselheim@bwh.harvard.edu.