This brief, filed by the Center for American Progress and the NAACP in response to Boehringer Ingelheim Pharmaceuticals Inc. v. U.S. Department of Health and Human Services et al., emphasizes the benefits of the Inflation Reduction Act’s Medicare prescription drug price negotiation program for affordability and health equity.


Note: The Center for American Progress is represented in this matter by Hannah Brennan and Sophia Weaver of Hagens Berman Sobol Shapiro LLP.


The Inflation Reduction Act made historic inroads into lowering Medicare prescription drug prices. This includes empowering the secretary of health and human services to directly negotiate drug prices on behalf of the Medicare program. Pharmaceutical companies across the industry—in an attempt to safeguard profits and retain the ability to set drug prices as high as the market will bear—are suing to block that authority.


On December 22, 2023, CAP, joined by the NAACP, filed an amicus brief in response to one such case, Boehringer Ingelheim Pharmaceuticals Inc. v. U.S. Department of Health and Human Services et al., to underscore how critical Medicare drug price negotiation is to improving beneficiary access and affordability for Medicare Part D drugs. The brief emphasizes how significant the impacts of Medicare drug price negotiation will be for racial and ethnic minorities, women, older adults, the LGBTQI+ community, and disabled people, and it emphasizes the centrality of lowering prescription drug costs to advancing health equity.



Part of this amicus brief reads as follows:


II. INTRODUCTION As a matter of health equity, all individuals must have “a fair and just opportunity to access their optimal health regardless of race, ethnicity, disability, sexual orientation, gender identity, socioeconomic status, geography, preferred language, or other factors that affect access to care and health outcomes.” But the reality of American health care falls far short of this goal. Socioeconomic status, historic and current discrimination and racism, disability status, and many other factors impede access to adequate health care. In America, health care has never truly been equitable.


For decades, high drug prices have been a driver of such inequitable health care access. Roughly three in ten American adults report not being able to afford to take their medications as prescribed, and historically marginalized populations are among those most likely to face these affordability challenges. Further, as medication costs increase, prescription adherence drops: a 2020 study found prescription abandonment rates were less than five percent when a prescription carried no out-of-pocket expense but jumped to 45 percent when out-of-pocket costs were over $125. Abandonment rates jumped further still—to 60 percent—when the outof-pocket cost was over $500. This is not a personal failing: people cannot buy and take drugs they cannot afford. And a lack of prescription adherence (predictably) hastens more serious, costly, and painful health outcomes. For example, the rationing of insulin medications is associated with more emergency room visits in the short term and a higher incidence of amputations, blindness, kidney failure, and death among diabetics in the long term. Such outcomes worsen (or prematurely end) individual lives. Higher drug costs feed a vicious cycle of increased health care spending for avoidably poor health outcomes. And those poor outcomes fall disproportionately on low-income people, people of color, women, and people with disabilities. Simply put, higher drug prices transform a disparity in wealth into a disparity in health and deepen existing health inequities.


The plaintiff in the instant action, Boehringer Ingelheim Pharmaceuticals Inc. (Boehringer), manufactures Jardiance—a drug used to treat diabetes and heart failure. According to Boehringer, Jardiance is the number one prescribed drug of its class (SGLT2 inhibitors) with 59 million prescriptions. According to 2021 Centers for Medicare and Medicaid Services (CMS) data, 26.5 percent of Medicare fee-for-service beneficiaries live with diabetes and 12.1 percent have heart failure. As a result, it is unsurprising that, in 2022, about 1.3 million Part D beneficiaries filled prescriptions for Jardiance. With respect to health equity, diabetes and heart failure disproportionately affect racial and ethnic minorities and low-income people.


The Inflation Reduction Act of 2022 has provided the federal government with a powerful tool to improve health outcomes. Combined with other critical IRA elements— including an insulin cost cap of $35 per month for Medicare beneficiaries, a cost-sharing redesign for Medicare Part D benefits, and inflation rebates for Medicare Part B and D prescription drugs—the new Medicare drug price negotiations will cut the cost of prescription drugs. These price cuts will save the Medicare program billions, enabling it to divert resources towards improving health outcomes for those most in need. Through this brief, amici seek to provide the Court with an understanding of how high drug prices and costs exacerbate existing health inequities. Amici then explain how the IRA’s Medicare drug price negotiations will help to alleviate that unfairness, bringing the United States closer to the goal of achieving health equity.


III. ARGUMENT A.


The federal government’s ability to negotiate Medicare drug prices provides a critical tool for addressing health inequities. 1. Socioeconomic inequities drive worse health outcomes among some Medicare beneficiaries.


First, Medicare enrollees who are Black, Latino, women, disabled, and/or LGBTQI+ are “more likely to have less money saved, lower incomes, and a greater likelihood of poverty . . . .” Racial wealth disparities between Black and Hispanic Medicare beneficiaries and white beneficiaries are particularly staggering. As of 2019, the median savings of white Medicare beneficiaries was over eight times higher than that of Black beneficiaries and twelve times higher than that of Hispanic beneficiaries. These disparities reflect, in part, “fewer opportunities among Black and Hispanic adults to accumulate wealth and transfer wealth from one generation to the next.”Such disparities mean that high medication costs hit Black and Hispanic Medicare enrollees harder—turning the underlying financial inequity into a health inequity.


The same is true of women, the LGBTQI+ community, and disabled people, who are also more likely to have lower incomes, creating barriers to prescription access. The median savings of women enrolled in Medicare was only 72 percent of their male counterparts. And women who are Medicare beneficiaries spend 13 percent more on out-of-pocket costs for medical care. Additionally, 19 percent of LGBT adults over 65 live under the federal poverty line compared to 15 percent of straight and cisgender adults over 65. For disabled Medicare enrollees under the age of 65 in 2016, the median income was $17,950—lower than the median income for Medicare beneficiaries ($26,200).


Second, it is well-documented that stress, racism, and discrimination drive poor health outcomes. Black and Hispanic people, as well as lower-income individuals, report higher levels of stress than their white and more affluent counterparts. Numerous studies demonstrate that repeated exposure to stress leads to greater allostatic load—accumulated wear and tear on the body, such as elevated blood pressure that can lead to adverse cardiovascular outcomes. The link between stress and cardiovascular disease, in particular, is “fairly robust.” Stress also negatively impacts the endocrine system—the malfunctioning of which causes diabetes and other disorders. As an example of this link, one study found that Black women “in the highest quartile of exposure to everyday racism had a 31% increased risk of diabetes, and women with the highest exposure to lifetime racism had a 16% increased risk . . . .” Finally, stress suppresses the immune system, leaving individuals more susceptible to disease.


Discrimination and a lack of access to culturally responsive care also deters some populations from obtaining needed medical treatment. For racial and ethnic minorities, 32 percent of Black patients, 23 percent of Native American patients, and 20 percent of Latino patients report experiencing racial discrimination while receiving medical care. As a result of concern about discrimination or poor treatment due to race, 22 percent of Black Americans, 17 percent of Latinos, and 15 percent of Native Americans have avoided seeking medical care for themselves or a member of their family, compared to nine percent of Asian Americans and only three percent of whites. LGBTQ people similarly lack access to culturally responsive care. For example, eight percent of LGBTQ people reported avoiding or postponing “needed medical care because of disrespect or discrimination from health care staff,” with the number rising to 22 percent for transgender respondents. Inability to obtain responsive care affects detection and treatment of disease, which, in turn, increases health inequity. In short, racism and other forms of discrimination drive poor health outcomes and prevent their treatment, trapping individuals in a vicious cycle of deteriorating health.


Third, where individuals live plays a critical role in health care and prescription drug access. For example, Black and Hispanic Medicare beneficiaries are more likely to live in medical deserts—areas with fewer primary care physicians and high-quality hospitals—making it harder for these individuals to access health care. Ten percent of Black and 11 percent of Hispanic Medicare beneficiaries reported trouble accessing needed care, compared to six percent of white beneficiaries. In large cities, where the majority of Black and Latino people live, Black and Latino people are more likely to live in pharmacy deserts—neighborhoods where the average distance to a pharmacy is one mile or more —which means they experience greater geographic barriers to filling their prescriptions. Black and Hispanic Medicare beneficiaries are also more likely to live in areas with low quality hospitals.


For diabetes care, the geographic regions with the highest prevalence of diabetes are also characterized by the lowest rates of endocrinologists. A general shortage of physicians, including a nationwide shortage of over 17,500 primary care doctors, will continue to exacerbate this trend. Quality medical care is something that people tend to have only when they also have a lot of other things.


Fourth, and especially relevant in a case concerning the cost of Jardiance, diabetes disproportionately impacts racial and ethnic minorities, transgender people, disabled people, and people with low incomes. Black and Hispanic Medicare beneficiaries are diagnosed with diabetes at younger ages and have higher rates of diabetes-related complications, such as high blood pressure, than white beneficiaries. The rate of diabetes among Asian American Medicare beneficiaries sits at 35 percent compared 24 percent for white enrollees. Specifically, Asian Indian beneficiaries are 70 percent more likely to be diagnosed with diabetes than white beneficiaries. American Indian and Alaskan Native adults are also almost three times more likely to have diabetes than white adults, and nearly a third of American Indians and Native Alaskans over 65 report having diabetes compared with 22 percent of the general population In 2020, 16 percent of people with disabilities living in the United States had been diagnosed with diabetes compared to 7.5 percent of people without disabilities, and people with cognitive limitations are up to five times more likely to have diabetes than those without.5 LGTBQI+ people too are more likely to have diabetes: 25 percent of gay and bisexual men and 14 percent of lesbian and bisexual women have diabetes compared to 10 percent of the general population. Finally, individuals with lower incomes are more likely to develop diabetes, with people with family incomes below the federal poverty level being two times more likely to die of Type 2 diabetes than those with incomes above it.


2.High prescription drug prices exacerbate existing health and financial burdens among these same groups of Medicare beneficiaries.


Placing a high price tag on medications—and preventing the federal government from negotiating down that price for the Medicare population—drives poor health outcomes within the same populations predisposed to worse health outcomes. The Centers for Disease Control and Prevention has shown that people that do not fill their prescriptions because of cost employ strategies like “skipping doses, taking less than the prescribed dose, or delaying filling a prescription.” These cost-saving strategies can result in more serious illnesses, more expensive treatments, and even death. For example, a 2021 working paper from the National Bureau of Economic Research found that an increase in Medicare Part D recipients’ out-ofpocket liability for prescription drugs of $100 per month resulted in 13.9 percent higher mortality compared to other patients with greater coverage. That same study found that patients who had the greatest need for treatment were more likely to interrupt their prescription regimen due to cost. For example, patients at greatest risk of stroke and heart attack were four times more likely to interrupt their cardiovascular drugs after an increase in costs than patients at a lower risk of such conditions.XXX