Looking Ahead: Health Care

The Court may hear several cases involving drug prices and the Affordable Care Act.

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.

The Patient Protection and Affordable Care Act (ACA)

Although the Court upheld the Patient Protection and Affordable Care Act (the “ACA”) in California v. Texas, litigation involving specific provisions of the ACA continues. Last year, we wrote about one of those cases, Braidwood Mgmt. Inc., v. Becerra. In this case, two employers and several individuals filed suit to invalidate key provisions of the ACA’s preventive services requirement. Am. Compl., No. 4:20-cv-00283-O (N.D. Tex. July 20, 2020) (ECF No. 14). The plaintiffs allege that these requirements violate various constitutional principles and impinge on their religious freedom. Id.

The ACA requires that insurance plans provide coverage of certain preventive services without cost sharing, meaning they must be free to insured people (without any copayments, deductibles, or coinsurance). When Congress drafted the ACA, it did not specify the covered services in the law. Instead, it delegated that task to three different government bodies with historical expertise — the U.S. Preventive Services Task Force (“USPSTF”), Advisory Committee on Immunization Practices (“ACIP”), and the Health Resources and Services Administration (“HRSA”). 42 U.S.C. § 300gg-13(a). This structure allows USPSTF, ACIP, and HRSA to add new services without Congress having to pass a new law.

In September 2022, a district court held that the portion of the ACA that grants authority to the USPSTF is unconstitutional but dismissed the plaintiffs’ claims concerning ACIP and HRSA. Braidwood Mgmt. v. Becerra, 4:20-cv-00283-O, 2022 WL 4091215 at *20 (N.D. Tex. Sept. 7, 2022). The Court also found that the coverage of PrEP, a prophylactic medication for those at risk of contracting HIV, violated the religious rights of one of the plaintiffs, Braidwood, a self-insured Christian business. Id.

In March 2023, after additional briefing, the district court held that all agency actions taken to implement or enforce the preventive care coverage requirements on or after March 23, 2010 (the date the ACA was passed) were unlawful, vacated all those actions, and enjoined the defendants from implementing or enforcing the ACA’s compulsory coverage requirements as recommended by USPSTF. Braidwood Mgmt v. Becerra, 4:20-CV-00283, 2023 WL 2703229 at *14 (N.D. Tex. Mar. 30, 2023). The government appealed and sought to halt portions of the decision from taking effect until after the Fifth Circuit issues its ruling, which the court granted following extensive briefing and oral argument. Braidwood v. Becerra, No. 23-10326 (ECF No. 153-1).

On appeal, AARP and AARP Foundation filed an amicus brief in support of the government, educating the court on the importance to older adults of continued provision of these services with no cost sharing. The brief focuses on the importance of preventive services to older adults to both detecting and managing diseases, explains how the ACA has greatly expanded access to these services and increased their utilization, details the impact the preventive services mandate has had in reducing disparities, and describes the negative health and financial consequences for older adults of invalidating the mandate.

Maame Gyamfi

mgyamfi@aarp.org

Meryl Grenadier

mgrenadier@aarp.org

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