Minnesota lawmakers are hopefully rested up after the July 4th holiday, because they have hard work ahead of them to fix the state’s pioneering but legally vulnerable insulin assistance program.
It’s unlikely the state will prevail in a new drug industry lawsuit challenging constitutionality of the law that launched the insulin program. Swift solutions are needed in the special session expected later this month.
The insulin program, which passed this spring, is named in honor of a young Minnesotan who died in 2017 after he aged off his mom’s health insurance and began rationing the medication he took for his diabetes. In this pandemic year, the Alec Smith Insulin Affordability Act was a bright spot. Alec’s grieving mother won bipartisan backing for a first-of-its kind effort to provide low-cost insulin on an emergency basis.
The law went into effect on July 1 and is still operational. Those who need this lifesaving medication can go to mninsulin.org to see if they qualify. But the vital new assistance appears to be in serious jeopardy. PhRMA, the powerful trade organization for drug firms, filed suit just hours before the law took effect.
The legal challenge apparently caught lawmakers and Gov. Tim Walz off-guard, but it shouldn’t have. In a March 18 letter sent to lawmakers finalizing the insulin bill, PhRMA outlined its concerns about the Minnesota House and Senate versions of the program. The letter stated the program would raise “Serious Constitutional Concerns under the Takings Clause of the Fifth Amendment to the United States Constitution.”
Those concerns were underscored in an April letter to Walz and later formed the foundation of the trade group’s June 30 complaint. In it, PhRMA argues that the state cannot “simply commandeer private property to achieve its public policy goals.” The private property at issue is the insulin that the new law requires drug firms to supply.
Legal experts have concluded that state Attorney General Keith Ellison will have difficulty defending the law. “This is going to be an incredibly hard case for Ellison to win. If they are going to fight this to the hilt, they are going to spend hundreds of thousands of dollars on a losing cause, ’’ said David Schultz, a visiting professor at the University of Minnesota law school and political science professor at Hamline University.
Former Minnesota Hospital Association counsel David Feinwachs agreed. “The Alec Smith Insulin Affordability Act pays tribute to an innocent victim of our dysfunctional and bizarre health care system ... it gives me no pleasure to say this but it must be said, the law we just enacted is unconstitutional.”
It’s tempting but unproductive to engage in blame-mongering. Legislators of both parties had good intentions as they crafted a deal that could pass the GOP-controlled Senate and the DFL-controlled House. The PhRMA lawsuit, however, raises questions about whether the risks of a legal challenge were understood. Sen. Scott Jensen, R-Chaska, also told an editorial writer that he thought he’d reached an agreement with industry representatives to avoid a lawsuit. Were assurances given to him in bad faith?
A stopgap solution will be needed if PhRMA prevails legally. Lawmakers will then have to come back in 2021 and find a long-term solution.
Federal lawmakers also need to act. Insulin’s cost nearly tripled between 2002 and 2013, according to GoodRx.com, and has increased 55% since 2014. Minnesota’s U.S. Sen. Tina Smith, a Democrat, has introduced a bill that would enable all states to enact an insulin assistance program.
PhRMA’s legal challenge to the Minnesota program puts skyrocketing insulin prices back in the spotlight just in time for the 2020 election. Candidates should be ready with solutions to ensure that those who need this lifesaving medication are able to readily access and afford it.