C. Joseph Ross Daval is a lawyer and research fellow at the Program on Regulation, Therapeutics, and Law , at Brigham & Women’s Hospital and Harvard Medical School. Aaron S. Kesselheim is professor of medicine and the director of PORTAL.attacking one of the Inflation Reduction Act’s core health policy achievements: its plan for Medicare to negotiate drug prices.
from taking private property without just compensation. Manufacturers may have a right to own and sell their drugs. However, they do not have a right to any particular level of Medicare reimbursement.Paying less for something is not the same as taking it, despite what the manufacturers claim. By their reasoning, nearly any effort to contain health-care spending would be unlawful.
, which prohibits the deprivation of liberty or property without due process of law. Courts have recognized due process rights in the context of certain public benefits,. But Medicare is not a benefit program for drug manufacturers. Rather, Medicare’s intended beneficiaries are the American people, many of whom cannot afford the cost of drugs at the rates manufacturers have set.
Finally, manufacturers claim that the Inflation Reduction Act unconstitutionally forces them to negotiate because it makes price negotiation a condition of receiving Medicare and Medicaid reimbursement. The manufacturers claim, in effect, that the reimbursement is too lucrative for them to refuse. But this claim confuses a carrot with a stick; an incentive is not a threat. The fact that federal programs constituteunderscores that government should be able to negotiate fair prices.
Although the outcome of this litigation is uncertain, one thing is clear: Each of these claims — that manufacturers have a right to say how much Medicare will pay them ; that high revenues deserves protection because they are inherently beneficial to the public ; and that conditioning federal reimbursement on participation in negotiation unlawfully forces companies to the table — betrays the disconcerting belief that some private companies have a right to the public money that serves patient...