Supreme Court Weighs Petitions Challenging Medicare Drug Negotiation Program
Supreme Court set to consider six pharmaceutical petitions on May 14 challenging Medicare drug negotiation program's constitutionality after industry's repeated lower court defeats.
Objective Facts
The Supreme Court is set to consider at its conference on May 14, 2026 whether to take up petitions from six pharmaceutical companies challenging the constitutionality of the IRA's Medicare drug negotiation program. For nearly three years, the pharmaceutical industry has unsuccessfully waged a litigation campaign against the Medicare drug price negotiation program, with every court that has considered substantive challenges ruling against the pharmaceutical industry. All six drug manufacturers that lost their appeals—AstraZeneca, Janssen, Bristol-Myers Squibb, Novo Nordisk, Boehringer Ingelheim, and Novartis—have asked the Supreme Court to intervene. The program has already been implemented by both the Biden and Trump administrations, with negotiated prices taking effect on January 1, 2026 for the first ten drugs, with all manufacturers participating. The Trump DOJ has been fervently defending the Medicare negotiation in court at all levels, despite the program receiving unanimous Republican opposition in its passage.
Left-Leaning Perspective
Merith Basey, CEO of Patients For Affordable Drugs, defended the program in January 2026, stating 'After decades of patients being grossly overcharged by greedy pharmaceutical companies for their prescription drugs, Medicare now has the power to negotiate, and the federal government is defending that authority at the highest level. The Solicitor General's brief sends a clear signal that this program is on solid legal footing.' Advocacy organizations like AARP warned that 'Any efforts to stop the drug negotiation program in its tracks risks the wellbeing of millions of older adults in the country who have waited far too long to afford medicine.' Progressive legal advocates at the Constitutional Accountability Center characterized Big Pharma's challenge as absurd, noting that 'almost one-fifth of older adults report that they skipped, delayed, underused, or borrowed prescription medications due to concerns about the cost' while 'over four-fifths of Americans support Medicare's ability to negotiate prescription drug prices.' Progressive legal scholarship emphasizes the flaws in pharmaceutical companies' constitutional claims. Christopher Morten, associate clinical professor of law at Columbia Law School, stated 'These provisions are clearly constitutional. I think the challenges that pharma's bringing are specious,' adding that while companies are 'doing backflips to come up with arguments to try to take this law down... I don't think that their constitutional arguments pass muster.' Progressive legal analysts note that 'a choice they don't like is not a constitutional violation,' pointing to one Delaware judge who observed, 'How is any of this involuntary? You're free to do what you want. You may not make as much money, but you're free,' and concluding that 'what the drug manufacturers, in this case, lack in constitutional support, they make up for in chutzpah.' Left-leaning coverage emphasizes patient benefits and downplays industry innovation concerns. Progressive outlets largely omit or minimize pharmaceutical companies' legitimate concerns about maintaining investment-backed expectations and the scale of price reductions—which range from 38-84 percent of pre-negotiation list prices. They focus on the immense profits pharma earns while underplaying the procedural and property rights arguments that have gained traction even among conservative jurists.
Right-Leaning Perspective
The pharmaceutical industry has argued that the program disguises 'a mandatory price control regime as a negotiation process,' with Judge Hardiman noting in dissent that manufacturers face 'an offer [they can't] refuse' through 'unavoidable, enterprise-crippling tax liabilities,' making clear that 'no voluntary program operates in that way.' AstraZeneca asserted that the negotiation program unconstitutionally limits its ability to sell its drugs at a market rate, thereby infringing on its property rights derived from its patents and regulatory exclusivity periods. Amicus briefs filed by pharmaceutical trade associations, pro-business groups, and conservative think tanks have supported these challenges. Merck, in its suit, claimed the drug price negotiation provision is unconstitutional, 'calling it tantamount to extortion,' arguing that the First Amendment is violated because 'the drug price negotiation program doesn't allow for any actual negotiation' and citing the Fifth Amendment takings clause 'which prevents the government from taking private property for public use without just compensation.' Legal scholars analyzing structural constitutional claims have noted that under the major questions doctrine—which the current Supreme Court has relied on to limit administrative agency authority—'CMS' drug pricing provisions impacting the massive U.S. pharmaceutical industry seem ripe for MQD applications favoring business, industry, and property rights.' Industry arguments emphasize that because Medicare and Medicaid make up nearly half of U.S. pharmaceutical spending, manufacturers effectively cannot opt out by paying excise taxes or withdrawing from the market, leaving them 'with no real choice but to participate in the Program.' Right-wing coverage emphasizes government overreach and constitutional property rights violations. Conservative arguments focus on the lack of genuine voluntary participation and the absence of adequate procedural safeguards or judicial review. Right-leaning outlets downplay or minimize empirical evidence that the program has not significantly deterred innovation—a Congressional Budget Office report found that drug pricing provisions will reduce R&D impact by only 1% over the next 30 years—and instead emphasize manufacturer concerns about future innovation threats and the unprecedented scope of CMS authority.
Deep Dive
The Medicare drug negotiation program represents a genuine constitutional and structural tension that should not be dismissed by either side. Progressive advocates have a strong argument that participation in government procurement programs is constitutionally voluntary—the government regularly negotiates with manufacturers via other agencies at substantially lower prices, and no manufacturer has actually exited Medicare despite legal challenges. Their emphasis on the unanimous lower court record and settled doctrine on voluntary government programs carries weight. However, the pharmaceutical industry raises legitimate structural concerns that deserve serious engagement. The scale is unprecedented: unlike traditional government procurement where alternatives exist, Medicare and Medicaid account for roughly 40% of U.S. drug spending. The 1900% excise tax figure may be inflated, but manufacturers face genuine financial penalties for non-compliance that go beyond ordinary market forces. The question of whether something can be labeled 'voluntary' when the alternative is financially catastrophic is constitutionally non-trivial—a point the Supreme Court has grappled with in other contexts involving government conditions on benefits. Additionally, manufacturers' due process claims about lack of notice and opportunity to be heard (the guidance was implemented without notice-and-comment rulemaking) present procedural arguments distinct from the substantive voluntary-participation analysis. What comes next depends less on the current legal record—which strongly favors the government—and more on the Supreme Court's institutional orientation. The Court currently has little incentive to grant certiorari absent a circuit split, and analysts note there are no conflicting appellate decisions yet. However, decisions from the Fifth Circuit in the PhRMA challenge (oral argument held in October 2025, decision pending) could create the split that prompts Supreme Court review. If the Court does accept a case, it will likely turn on structural constitutional doctrines (nondelegation, major questions) rather than property rights arguments, given the settled precedent against pharma on traditional takings and due process claims.