John Thys via AP
Pfizer CEO Albert Bourla has been one of the most outspoken pharma executives against the ruling by Judge Matthew Kacsmaryk overturning FDA approval of the abortion drug mifepristone.
The pharmaceutical industry is very upset. Right-wing federal judge Matthew Kacsmaryk’s ruling overturning the Food and Drug Administration’s 23-year-old approval of abortion medication mifepristone could severely damage companies’ ability to develop and market prescription drugs. Companies could spend a fortune getting a drug approved, only to see the courts take issue with the process, and the money washed down the drain. To them, it’s the worst thing a court ruling can be: bad for business.
That’s why Big Pharma is speaking out. On Monday, industry leaders fashioned an open letter condemning Kacsmaryk’s “act of judicial interference,” which “creates uncertainty for the entire biopharma industry … Adding regulatory uncertainty to the already inherently risky work of discovering and developing new medicines will likely have the effect of reducing incentives for investment, endangering the innovation that characterizes our industry.” Over 400 industry CEOs and top executives have signed on to the letter, as of Tuesday afternoon.
Because of a separate ruling from a judge in Washington state and the Biden administration’s swift appeal, it’s unclear what will happen to mifepristone access. The case is almost certainly headed to the Supreme Court.
But the industry’s lament about judicial activism feels a bit like Dr. Frankenstein expressing outrage over the destruction carried out by his monster. The pharmaceutical industry as a whole, and many of the individual officials who signed the letter, financially supported the Senate Republicans who confirmed Kacsmaryk to the federal bench.
Kacsmaryk was confirmed in June 2019 on a mostly party-line vote. Of the 53 Senate Republicans then in office, only Sen. Susan Collins (R-ME) voted against him. Thirty-eight of those 52 Kacsmaryk supporters are still in office.
The vast majority of these members have received personal donations from top employees of the pharmaceutical industry and their company PACs who signed the open letter. And Senate Republicans more generally have benefited from the largesse of drug industry trade associations.
To be fair, many Democrats also get a heaping share of pharmaceutical industry campaign cash. Like many industries, they want both parties in their pocket as deeply as possible. A 2021 report in Stat News found that two-thirds of all members of Congress received contributions from pharmaceutical firms leading up to the 2020 election. Pfizer alone, which has three signatories on the letter, donated to 228 lawmakers through its political action committee that cycle.
But the industry’s giant money-spray approach to most of Washington didn’t account for how anti-abortion zealotry could harm their business model. Senate Republicans, who elevated the judge whose ruling threatened the functioning of the U.S. drug approval system, have since then been uncharacteristically quiet about it.
Though it’s possible that the ruling will create an irreparable split, given the alignment between drugmakers and anti-regulatory Republicans (all of whom opposed price negotiation on prescription drugs through Medicare last year), it’s unlikely to happen. The only lawmakers who are sure to get left out of the campaign funding bonanza are progressives who want to cut spending on prescription drugs.
For now, all we have are the hard numbers, showing that Senate Republicans voting for Kacsmaryk got to the Senate in part on the backs of Big Pharma.
Take Pfizer’s CEO Albert Bourla, perhaps the loudest private-sector chief executive attacking the Kacsmaryk ruling. Since 2019, he has given large personal donations to most of the Senate Republican leadership, the ones who set the legislative calendar and made sure Kacsmaryk got confirmed.
Senate Republican Leader Mitch McConnell (R-KY) got $2,800, and top deputies John Thune (R-SD) and John Cornyn (R-TX) got $5,800 and $5,000, respectively. Former Colorado Sen. Cory Gardner got $5,000 from Bourla before he was defeated in 2020, and he dutifully voted for Kacsmaryk, along with the other recipients of campaign cash. (Bourla also maxed out to pro-pharma Democrats Robert Menendez of New Jersey and Chris Coons of Delaware in the past few years; neither of them voted for Kacsmaryk.)
The PACs of Pfizer, Genentech, Biogen, and Lundbeck, all of whose CEOs signed the open letter, have given donations to 45 of the 52 Republican senators who voted for Kacsmaryk over the past three election cycles, for a total of $584,999, according to data from the Center for Responsive Politics. Leading the pack was Sen. Bill Cassidy (R-LA), a physician, who received $36,500 over those three cycles from all four firms. Sen. Thom Tillis (R-NC) received $32,000, Sen. Shelley Moore Capito (R-WV) received $27,000, and Sen. Tim Scott (R-SC) received $24,000, also raking in donations from all four firms. Thirty of the senators received at least $10,000.
Scott in particular has become a darling of the pharmaceutical industry in recent years, with $99,000 in donations in just the second half of 2021, according to Kaiser Health News. Scott is a presumed 2024 presidential candidate.
In addition to the four companies mentioned above, eight other companies whose top executives signed the open letter are part of the 30 core members of PhRMA, the leading trade association for the drug industry. That includes officials from Bayer, Bristol Myers Squibb, Incyte, Ipsen, Merck, Novartis, Sage, and Takeda. The CEOs of Incyte and Sage signed the document.
Unlike many individual companies, PhRMA’s donations are tilted toward Republicans, with 81 percent of its $1.5 million in donations from 2007 to 2022 going to the GOP. McConnell and Cornyn have been the largest recipients of PhRMA money in Congress in that period, with $31,500 and $28,500, respectively. The industry really moved its money into Republican hands in 2019, when they feared a Democratic trifecta in the 2020 elections would make pricing reforms more likely. The Senate remained in Republican hands after the 2018 midterms, thanks in part to PhRMA, and Senate Republicans confirmed Matthew Kacsmaryk the next year.
The on-the-books funding doesn’t take into account the millions of dollars in dark money that PhRMA has given in the past several years. Because of the inability to track the cash, we don’t know precisely how much the pharmaceutical industry gave, but we can say that outside groups spent nearly $1 billion on Senate Republican candidates in the 2022 election cycle. One $4.5 million donation from PhRMA in 2020 supported the American Action Network, a right-wing group.
A large number of the executives who signed the open letter come from the biotechnology sector. Seven signers of the letter are members of the board of directors of the Biotechnology Innovation Organization (BIO), the industry’s leading trade group, including the chair (Paul Hastings, CEO of Nkarta Therapeutics) and the immediate past chair (Jeremy Levin, CEO of Ovid Therapeutics). Levin told The New York Times that Kacsmaryk’s ruling “completely upends the F.D.A.’s authority.” BIO’s interim CEO has separately spoken out in similar terms.
BIO contributed over $354,000 to campaigns and candidates in the 2022 election cycle, including $37,700 to 18 Senate Republicans. Sens. Steve Daines (R-MT) and Todd Young (R-IN) were the biggest recipients among the Senate GOP; both voted for Kacsmaryk. Another $56,000 was given to Senate Republican candidates in the 2020 cycle, led again by Daines and Young.
So if the pharmaceutical industry is looking for someone to blame when right-wing judges don’t respect the FDA approval process, and if they want to cry about the significant investments into drug development that could be lost if it gets blown up, they could try looking in a mirror.
