Episode 21: Bristol Myers Squibb Co v. Secretary United States Department of HHS
Bristol Myers Squibb Co. v. Secretary United States Department of HHS, consolidated under AstraZeneca Pharmaceuticals LP et al v. Secretary United States Department of HHS, argued before Circuit Judges Thomas M. Hardiman, Peter J. Phipps, and Arianna J. Freeman in the U.S. Court of Appeals for the Third Circuit on October 30, 2024. First Amendment question argued by Kevin F. King (on behalf of Bristol Myers Squibb Co., et al.) and Catherine M. Padhi (on behalf of the government).
Note: the court separated the various constitutional issues from the consolidated cases into distinct portions of the oral arguments. What follows, both in terms of content and audio, relates specifically to the First Amendment question, which is the second of the three issues listed below. The other portions of the oral argument are not included in this podcast.
Statement of the Issues, from the Opening Brief for Appellant:
- Whether the Program effects takings that require just compensation under the Fifth Amendment.
- Whether the Program compels speech in violation of the First Amendment.
- Whether a manufacturer’s submission to the Program’s demands is “voluntary” and immune from constitutional scrutiny.
Background on the Drug Price Negotiation Program, from the Institute’s case page:
The program requires drug manufacturers to adopt these messages [that they “agreed” to a new “maximum fair price,”]—even when those companies disagree. Failure to do so would subject the companies to staggering excise tax penalties on every domestic sale, as well as forced withdrawal of all products from Medicare and Medicaid.
Resources:
- Court Listener docket page
- Opening Brief for Appellant
- Brief for Appellees
- Institute for Free Speech amicus brief
- Institute for Free Speech case page (includes additional information)
Listen to the argument here:
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