Do drugmakers have a constitutional right to set their own prices?

Merck thinks so and is suing the U.S. government over it

prescription drugs.
(Image credit: Illustrated | Gettyimages)

Drug company Merck is suing the United States government in an attempt to undercut drug price negotiations laid out by the Biden administration's Inflation Reduction Act (IRA). The crux of Merck's argument, as Sen. Elizabeth Warren (D-Mass.) noted, is that drug companies "have a constitutional right to charge Medicare whatever it wants — and taxpayers must pay up."

Merck claims that the proposed drug price negotiations are unconstitutional because its patented drugs are "protected from uncompensated takings" by the Takings Clause. Part of the Fifth Amendment, the Takings Clause states that "private property can't be taken for public use without proper compensation," Bloomberg Law reported. This argument goes against the provisions of the IRA, which would allow Medicare "to negotiate the prices of certain drugs that have been on the market for several years but don't have competition from generics" starting in 2026, Axios reported.

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Justin Klawans, The Week US

 Justin Klawans has worked as a staff writer at The Week since 2022. He began his career covering local news before joining Newsweek as a breaking news reporter, where he wrote about politics, national and global affairs, business, crime, sports, film, television and other Hollywood news. Justin has also freelanced for outlets including Collider and United Press International.