Big Pharma lost in court — Congress must not bail it out

For the last three years, some of the most profitable corporations in the world spent millions of dollars in court attempting to reverse the biggest defeat the pharmaceutical industry suffered in decades. The Supreme Court recently declined even to hear their cases. 

For these companies, the legal fight is now over. But the pharmaceutical industry’s campaign to gut Medicare drug price negotiation is not.

Six drugmakers — AstraZeneca, Boehringer Ingelheim, Bristol Myers Squibb, Janssen, Novartis and Novo Nordisk — asked the Supreme Court to gut Medicare’s authority to negotiate lower drug prices. The court said no, leaving intact a string of lower court defeats and closing every legal avenue for the six companies.

To understand the pharmaceutical industry’s argument, you must understand what it was trying to restore. For more than two decades, Medicare was barred from negotiating lower prescription drug prices for Americans — not because negotiation was unconstitutional, but because the industry wrote that prohibition into law. No other industry has ever claimed such a protection. That meant American patients paid far more for their brand-name medications than patients in other wealthy countries, where governments routinely negotiate prices.

When Congress ended this sweetheart deal in 2022, drugmakers filed more than 10 lawsuits to reinstate their monopoly power. Courts across jurisdictions, with judges nominated by presidents of both parties, reached the same conclusion: There is no constitutional right to charge the government — the largest single purchaser of prescription drugs in the world — whatever you want, indefinitely.

Hospitals and medical device makers negotiate with Medicare. Yet drug companies were asking........

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