During the 2023 term and beyond, several issues involving health care will likely make their way to the Supreme Court.
Inflation Reduction Act of 2022
The Inflation Reduction Act of 2022 is a landmark law aimed at reducing inflation by reducing the federal deficit, lowering the price of prescription drugs, and investing in clean energy. Pub. L. No. 117-169, August 16, 2022, 136 Stat. 1818. A key hallmark of the law is that, for the first time, it authorizes the federal government to negotiate with pharmaceutical companies the price that Medicare will pay for some high-cost prescription drugs. Id. The Secretary of Health and Human Services will begin negotiating the prices of 10 high-cost prescription drugs in the fall of 2023. The negotiated prices will go into effect in 2026 for drugs covered under Medicare Part D and in 2028 for drugs covered under Medicare Part B. Id. The government will increase the number of negotiated drugs in subsequent years, reaching a total of 60 negotiated drugs by 2029. See Dena Bunis, Landmark Bill to Cut Prescription Drug Prices Signed into Law, AARP (Aug. 12, 2022).
Even before its enactment, pharmaceutical companies spent over $350 million to stop Congress from passing the law and threatened legal action to halt its implementation. See Inci Sayki, Despite Record Federal Lobbying Spending, the Pharmaceutical and Health Product Industry Lost their Biggest Legislative Bet in 2022, Open Secrets (Feb. 2, 2023). In June 2023, Merck & Co. was the first pharmaceutical company to sue to stop the implementation of the law. Then Bristol Myers Squibb, the U.S. Chambers of Commerce, the Pharmaceutical Research and Manufacturers of America, and other companies followed. The lawsuits allege various violations of the U.S. Constitution, including violations of its First, Fifth, and Eighth Amendments, and the separation of powers between the legislative and executive branches. After the government announced the first 10 drugs in August 2023, additional lawsuits were filed or are expected. These companies will likely also ask the courts to immediately stop the negotiations from beginning as scheduled on October 1. See, e.g., Mot. For Prelim. Inj., Dayton Area Chamber of Commerce v. Becerra, No. 3:23-cv-00156-TMR-PBS (ECF No. 29) (filed July 12, 2023). AARP has filed an amicus brief opposing the preliminary injunction requested in the Dayton Area Chamber of Commerce case, arguing that an injunction is not in the public interest, and will, in fact, harm older adults, the Medicare program, and American taxpayers.
It is likely these cases will eventually make their way to the Supreme Court because they have been filed in several different circuits, which could result in a Circuit split.