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This System and Its Constitution Don’t Deny People Life-Saving Medications, Do They?… Oh Yes They Do!

How the U.S. Constitution Can Be and IS Wielded to Keep Drug Prices—and Needless Suffering and Death—Sky High

In 2018, Alec Raeshawn Smith of Richfield, Minnesota died an excruciating death from diabetic ketoacidosis. His body didn’t have enough insulin. His blood sugar skyrocketed, his cells deteriorated, and his body shut down. Raeshawn was only 26 years old, just starting his adult life.

The problem wasn’t that a cure didn’t exist for his diabetes or that life-saving medicines weren’t readily available. Insulin is a common drug, widely available since 1923.

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The problem is that in America, healthcare and medicines aren’t basic rights, they’re commodities for sale. Their price, production and distribution are dictated by the needs and workings of the capitalist-imperialist system—not the needs of people here and around the world.

Raeshawn just couldn’t afford the price the giant pharmaceutical monopolies were charging, so he paid with his life. "That cause of death of diabetic ketoacidosis should have never happened," his mother said.1

Yes! Raeshawn’s death and the deaths of tens of thousands of others due to lack of medicines or healthcare should never have happened! But they do keep happening because of the murderous workings of this system—which is not fundamentally driven by individual greed, but by the cutthroat, expand-or-die competition between rival capitalists—which is enshrined in and protected by the U.S. Constitution.

Apologists for this system hail the U.S. Constitution as one of the greatest documents ever written. But the revolutionary leader Bob Avakian has exposed it as an exploiters’ charter, designed to legitimize and protect private property, exploitation, capitalism (now capitalism-imperialism)—and legalize the needless suffering and death that result. (See sidebar below.)

This is why even though medical technology has advanced by leaps and bounds, and a raft of new life-extending and life-saving drugs have been developed in recent decades, getting adequate, affordable healthcare is a nightmare for millions in America:

  • Why some 30 million people in this country don’t have health insurance2, and why at least 25,000 people needlessly died in 2020 because they don’t3.
  • Why millions—as much as 25 percent of the U.S. population—“are delaying getting medical help because of skyrocketing costs.” 4
  • Why prescription drug prices, especially for new cutting-edge drugs, have steadily risen, even skyrocketed.
  • Why thousands die each year because they can’t afford life-saving medicines and literally millions are forced to skip doses or go without—risking their health and lives.5
  • Why the pharmaceutical industry has reaped trillions of dollars—yes, trillions—in profits over just the past two decades, profits they are driven to accumulate or risk going under due to the workings of this system.6

Somewhat Lower Drug Prices? Capitalist-Imperialist Pharmaceuticals Say NO!

A legal battle is now taking place over prescription drug pricing and availability, which is a damning exposure of the bankruptcy of this system.

The Biden administration is trying to band-aid this open sore through the Inflation Reduction Act, passed by Congress in 2022. It gives Medicare officials the right to negotiate lower prescription drug prices with the drug companies. If the companies refuse, they’re forced to pay a fine. The process is set to begin on September 1.

This reform doesn’t change the predatory, capitalist-imperialist character of U.S. healthcare, or fundamentally remedy the nightmare of prescription drug pricing and availability, though it could benefit sections of the population and no doubt save lives.

Yet even this limited reform drew a fierce backlash from the biggest drug companies. One pharmaceutical executive declared, “You can’t take hundreds of billions of dollars out of the pharmaceutical industry and not expect that it’s going to have a real impact on the industry’s ability to develop new treatments and cures for patients.” When this executive talks about “ability to develop new treatments and cures,” they’re actually talking about the ability of capitalists to accumulate profit, in the face of competition from other capitalists. So the complaint from this executive is an expression of the competitive compulsions driving capitalism-imperialism: even giant corporations making billions of dollars in profit still need to continually expand and accumulate more capital—or they will be driven under by competing capitalists doing the same thing.

Four pharmaceutical giants—Janssen [Johnson & Johnson], MerckBristol Myers Squibb and Astellas Pharma, as well as the U.S. Chamber of Commerce (the industry’s main trade group)—have filed lawsuits in federal court to halt any price negotiations. One public health legal expert told the New York Times the drug industry was “throwing the kitchen sink at the government.”7

Where Do the Drug Companies Turn? The U.S. Constitution!

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All these lawsuits argued (in various ways) that the Medicare drug price negotiations were unconstitutional. They cited the Fifth Amendment’s “Taken” clause: “nor shall private property be taken for public use, without just compensation,” arguing making them negotiate or pay a fine constitutes taking their property without “just compensation.” 8

They claim their First Amendment rights are being violated by their having to state publicly that they’re negotiating a “fair price” with the government. They also cite the Eighth Amendment’s prohibition of “excessive fines.”9 (See, for example, the recent filing by Johnson & Johnson,10  Merck,11 and Bristol Myers Squibb.12)

The outcome of the proceedings is far from certain. But it’s not like the pharmaceutical giants are simply lying or grasping at straws—their legal arguments are rooted in the U.S. Constitution and its amendments, which are grounded in and shot through with defenses of private property, capitalism and exploitation.

In stark contrast to this capitalist-imperialist system and its constitution, the Constitution for the New Socialist Republic in North America mandates health care to serve the people as one component of a liberating society on the path to the emancipation of all humanity.

Bob Avakian on Why He Wrote the Constitution for the New Socialist Republic in North America

We Need and We Demand: A Whole New Way to Live, a Fundamentally Different System

This whole situation—of millions and millions without adequate healthcare and this system and its laws and founding Constitution unable to remedy this needless suffering—is outrageous, intolerable, and unnecessary!

At this time when revolution and a radically different society have become more possible, it’s urgent that thousands growing into millions of people take up and spread the demand from WE NEED AND WE DEMAND: A WHOLE NEW WAY TO LIVE, A FUNDAMENTALLY DIFFERENT SYSTEM:

Health Care to Serve the People

Health care will not be oriented (and distorted) to make profit for big medical and pharmaceutical corporations, with the result that great numbers of people cannot afford decent health care under the present system. Such corporations will no longer exist—they will be replaced by government-funded health care. The purpose of health care will be to serve the people and continually develop and apply the science of medicine to meet the medical and health needs of people in society as a whole, in a way that is affordable for the masses of people, with the goal of finally making free, high-quality health care available for all. 13

We Need and We Demand : A Whole New Way to Live, A Fundamentally Different System

 

As Bob Avakian writes in “U.S. Constitution: An Exploiters’ Vision of Freedom—Added Notes (and Brief Introduction)”:

Madison got to the heart of the matter, the essence of what the U.S. Constitution is all about, when in the course of upholding the decision to treat slaves as three-fifths human beings he agrees with the following principle: "Government is instituted no less for protection of the property than of the persons of individuals." 14  Property rights—that is the basis on which outright slavery as well as other forms of exploitation, discrimination, and oppression have been consistently upheld. And over the 200 years that this Constitution has been in force, down to today, despite the formal rights of persons it proclaims, and even though the Constitution has been amended to outlaw slavery where one person actually owns another as property, the U.S. Constitution has always remained a document that upholds and gives legal authority to a system in which the masses of people, or their ability to work, have been used as wealth-creating property for the profit of the few.15

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FOOTNOTES:

1. Insulin's High Cost Leads To Lethal Rationing, NPR, September 1, 2018. [back]

2. How Many Americans Are Uninsured, moneygeek.com, May 2, 2023 [back]

3. Decrease in US health insurance coverage led to 25,180 deaths, Open Access Government, October 29, 2020 [back]

4. “The Americans dying because they can't afford medical care,” Guardian, January 7, 2020. [back]

5. Over nine million people each year are forced to skip doses of their medicines—potentially endangering their health, perhaps even their lives—because they can’t afford them. In 2022, 1.3 million people suffering from diabetes were forced to ration their insulin because of its soaring cost, putting their health in danger, Drug costs lead millions in the US to not take medications as prescribed, according to CDC," CNN, June 2, 2023. [back]

6. Profitability of Large Pharmaceutical Companies Compared With Other Large Public Companies, JAMA, March 3, 2020. [back]

7. “Drugmakers Are ‘Throwing the Kitchen Sink’ to Halt Medicare Price Negotiations,” New York Times, July 23, 2020. [back]

8. “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” "Grand Jury, Double Jeopardy, Self Incrimination, Due Process, Takings —FIFTH AMENDMENT," National Constitution Center. [back]

9. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” "Excessive Fines, Cruel and Unusual Punishment—EIGHTH AMENDMENT," National Constitution Center. [back]

10. Excerpt of Janssen [Johnson & Johnson] complaint:

C. The Act Violates Janssen’s Constitutional Rights

82. The Program violates Janssen’s constitutional rights in at least three respects.

83. First, the Program will appropriate Janssen’s patented Xarelto® products for third-party use without providing adequate compensation, a clear physical taking in violation of the Fifth Amendment.

84. Second, the Program will violate the First Amendment by compelling Janssen to make false and misleading statements through the Manufacturer Agreement, including that the Program will involve “negotiating” a “fair” price for Xarelto® products.

85. Third, the Act would violate Janssen’s constitutional rights even if participation in the Program were voluntary (it is not), by impermissibly conditioning Janssen’s ability to participate in Medicare and Medicaid on Janssen’s relinquishing its speech and property rights. [back]

11. Excerpt of Merck complaint:

3. This is not “negotiation.” It is tantamount to extortion. And it violates the Constitution in at least two obvious respects.

4. To start, the Fifth Amendment requires the Government to pay “just compensation” if it takes “property” for public use. Yet the singular purpose of this scheme is for Medicare to obtain prescription drugs without paying fair market value.

The IRA wields the threat of crippling penalties to force manufacturers to transfer their patented pharmaceutical products to Medicare beneficiaries, for public use. And the Act costumes these seizures as “sales” by forcing manufacturers to accept Government-dictated payments that represent a fraction of the drugs’ fair value. By definition—and by design—that is not “just compensation.” Requisitioning manufacturers’ medicines in this manner is instead a classic per se taking.

5. Further, the IRA’s mechanism for effecting this taking makes a mockery of the First Amendment. Congress could have accomplished its economic goals much more simply and honestly: by empowering HHS to set prices for covered drugs. The IRA instead operates through a façade of “negotiations” and “agreements” that require manufacturers to convey that they “agree” to HHS’s “fair” prices. The only conceivable purpose of this circuitous regime is political deception—to allow the Government to pretend, as it already has done, that HHS’s prices are not top-down mandates but the product of voluntary “agreements” with companies who concede they are “fair.” Conscripting companies to legitimize government extortion is the sort of parroted orthodoxy that the First Amendment’s compelled-speech doctrine forbids. [back]

12. Excerpt of Bristol Myers Squibb complaint:

5. This Program is unconstitutional. Most obviously, the Fifth Amendment requires the Government to pay “just compensation” if it takes private “property” for public use. This fundamental protection prevents Medicare from outright seizing a portion of each pharmaceutical company’s inventory. But compelling the transfer of the inventory at a unilaterally dictated discount is no different, either functionally or legally. The singular purpose of the Program is to allow Medicare to secure the pharmaceuticals without paying their fair value. It uses the threat of crippling penalties to accomplish that objective. That amounts to a classic, per se physical taking without the “just compensation” that the Constitution demands.

6. That is not the only constitutional infirmity in the way the IRA is structured. Rather than candidly admitting to the American people that it imposed mandatory price controls and forced sales, Congress filtered the IRA’s requirements through a façade of “agreements” through which pharmaceutical manufacturers must convey that they “agree” to HHS’s dictated prices and that they “agree” that such prices are the “the maximum fair price[s]” for their medicines. In other words, instead of simply directing the companies on what they must do, the IRA uses the threat of penalties to coerce the companies to say they agree to do it all voluntarily. That is unprecedented—and intentional. This structure serves the political purpose of masking unilateral price caps as voluntary “agreements” formed through genuine “negotiations,” when they are not. But, under the First Amendment, the Government cannot conscript citizens (including businesses) to parrot its preferred political messaging. [back]

13. WE NEED AND WE DEMAND: A WHOLE NEW WAY TO LIVE, A FUNDAMENTALLY DIFFERENT SYSTEM, revcom.us. [back]

14. Quotes from James Madison are from the Federalist Paper No. 54 in The Federalist Papers (New York: New American Library, 1961), pp. 336-341, especially pp. 339 and 337. [back]

15. Bob Avakian, "U.S. Constitution: An Exploiters’ Vision of Freedom—Added Notes (and Brief Introduction)," revcom.us, May 8, 2023. [back]

We are at a turning point in history. The capitalist-imperialist system is a horror for billions of people here and around the world and threatening the very fabric of life on earth. Now the election of fascist Trump poses even more extreme dangers for humanity—and underscores the total illegitimacy of this system, and the urgent need for a radically different system.

The website Revcom.us follows the revolutionary leadership of Bob Avakian (BA), the author of the new communism. Bob Avakian has scientifically analyzed that we are in a rare time when an actual revolution has become more possible in the U.S. He’s charted a strategy for making that revolution, and laid out a sweeping vision and concrete blueprint for “what comes next” in the Constitution for the New Socialist Republic in North America.

Revcom.us projects BA’s voice, leadership, and vision throughout society. It posts his timely leadership for the revcoms (revolutionary communists) and the whole movement for revolution, including his social media posts, and curates his whole body of work. 

Our website applies the scientific approach BA has developed to analyze major events in society and the world—why they are happening, how they relate to each other, how all this relates to the system we live under, where people's interests lie, how revolution is in fact the solution to all this, and what the goals of that revolution are.

Revcom.us acts as a guiding and connecting hub for the revcom movement nationwide: showing what’s being done, digging into what’s right and what’s wrong, and rapidly learning—and recruiting new people into what has to be a rapidly growing force. As part of this, revcom.us feature and promotes the weekly The RNL—Revolution, Nothing Less!—Show on YouTube.com. 

Put it this way: there will be no revolution unless this website not only “keeps going” but rises to a whole different level!

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