AARP Urges Court to Declare Medicare Drug Price Negotiations Constitutional

Millions of older Americans will be able to afford life-sustaining prescription drugs under a landmark law that for the first time allows Medicare to negotiate the prices of some expensive medications. That provision must be allowed to stand, AARP and the AARP Foundation say in a legal brief filed Sept. 18 in a District of Columbia federal court.

Just as the negotiations process for the first 10 prescription drugs is getting underway under the Inflation Reduction Act (IRA), AARP has filed an amicus brief in a lawsuit brought against the U.S. Department of Health and Human Services (HHS) by pharmaceutical giant Merck & Co. The drugmaker is asking a federal judge to declare the historic Medicare negotiations provision unconstitutional. 

AARP Membership

Join AARP for $12 for your first year when you sign up for Automatic Renewal. Get instant access to members-only products and hundreds of discounts, a free second membership, and a subscription to AARP The Magazine. 

Join Now

The lawsuit is one of a growing number of legal challenges filed so far by drug companies and business groups in an attempt to derail the drug negotiation portion of the IRA. 

Merck’s diabetes drug Januvia is among the first 10 medications slated for price negotiations. According to AARP, the list price of Januvia has increased by 275 percent since it entered the market in 2006, and the drug has accounted for $21.6 billion in Medicare Part D spending between 2017 and May 2023.

Also filing lawsuits against the negotiation program are PhRMA (the drug industry’s trade association), the U.S. Chamber of Commerce, Bristol Myers Squibb Co., Johnson & Johnson, Astra Zeneca, Boehringer Ingelheim and Novartis Pharmaceuticals. 

This is the second legal brief AARP and the AARP Foundation asking federal courts to maintain the provision of the new law that AARP and other advocates have long fought for. AARP filed an amicus brief in August urging an Ohio federal court to deny a request by the U.S. Chamber of Commerce to prevent the Centers for Medicare & Medicaid Services (CMS) from implementing the negotiations process.

Drug negotiations key to new law

The latest AARP brief says that the “Medicare drug price negotiation program is the cornerstone of the law because it addresses the central problem — out of control drug prices.” The brief also says that "Merck seeks to protect the pharmaceutical industry’s ability to charge unreasonable and astronomical prices at the expense of what people with chronic conditions need to survive. Its efforts threaten the financial health of Medicare."

Until passage of the new drug law, Medicare was barred from negotiating the prices of prescription drugs. Merck, the brief says, wants drug companies “to once again obtain a special exemption which no other health care provider group has that would allow drug companies to charge Medicare and its beneficiaries whatever price they want for their products.”