Drugs Would Be Cheaper if We Weren't Killing People with Them

This week, President Trump signed an executive order aimed at lowering prescription drug costs. Titled “Delivering Most-Favored-Nation Prescription Drug Pricing to American Patients,” it directs several federal agencies to work toward matching global-high American drug prices with our lower-paying counterparts abroad.

Naturally, this generated a lot of talk about whether it would work, and a representative for trade group PhRMA—who, to be sure, have conflicts of their own—warned about the knock-on effects, claiming that attempting to match foreign drug prices “would mean less treatments and cures and would jeopardize the hundreds of billions our member companies are planning to invest in America.”

I’m far from qualified to evaluate this scheme, and whether or not it’s going to work, I’ll grant that secondary costs be damned, America has to do something about the cost of healthcare. Which makes it all the more galling that Trump has repeatedly endorsed and facilitated an entirely optional way of making American drugs more expensive: using them in lethal injection.

Lethal Injection Imposes Extensive Regulatory Hurdles on Already Expensive Drugs

Execution by lethal injection is pharmacologically designed to mimic surgery, with absurdly large doses of one or two surgical drugs—a sedative, which induces unconsciousness and removes sensation, and traditionally a paralytic, which renders the respiratory muscles unusable—followed by (again, traditionally) potassium chloride, which arrests the heart’s electrical conduction cycle. These drugs aren’t cheap; indeed, they’re so expensive that health insurer Anthem briefly floated restricting the time they’d be covered in surgical procedures (notably pulling back after a health insurance CEO was shot to death.) They’re also supplied through a notoriously fragile supply chain, leaving Americans subject to foreign manufacturers, and subsequently to foreign priorities.

Western Europe emerged from the horrors of World War II with a staunch commitment to reducing the state’s power to kill its own citizens; the intergovernmental Council of Europe explicitly declares the global end of the death penalty is part of its mission. Since Europe houses a significant percentage of the pharmaceutical industry, this position put it on a collision course with their largest market, as the United States turned toward theoretically sanitized executions via lethal injection. The issue came to a head when Hospira, the company that produced first-choice lethal injection sedative thiopental, shut down its only American plant; struggling for permission to operate from the Italian Parliament, the company chose to stop producing thiopental altogether. Providers in the United States have not had access to thiopental since.

With lethal injection suddenly thrown into chaos, state governments and their European counterparts began playing cat-and-mouse with drug supplies (one lowlight: Arizona getting its thiopental from the back room of a London driving school, possibly delivered to a prison guard’s house). Eventually, the entire European Union updated its Torture Regulation—which initially listed “classic“ state-sponsored homicide implements like guillotines and gallows—to ban the export of “certain pharmaceutical chemicals which could be used for in lethal injection executions.” Complying with these regulations isn’t cheap—or, as Hospira told European regulators, even possible in some cases.

Unlike thiopental, however, which Hospira could jettison on the cheap—the pioneering anesthetic would soon be surpassed by propofol, and a company said US sales accounted for just 0.25% of the company’s sales—other medicines covered by the regulation were essential to both company operations and legitimate American medicine. European manufacturers would simply have to eat the cost of ensuring their products didn’t end up used in ways they opposed from the outset—or, more likely, increase prices to compensate.

Big Pharma’s Execution-Imposed Drug Control Systems Are Clunky and Expensive

In 2011, frustrated that state governors and prison officials ignored demands to stop using its pentobarbital, Danish manufacturer Lundbeck announced it would be closing its distribution system. The company now had to not only personally review each shipment, but secure agreements from each recipient that they wouldn’t redistribute the drug to an outside agency. Not only would drug prices suffer from the obvious effects of reduced seller competition, they’d incur substantial costs should they need to onboard a new buyer (with one estimate as high as $90,000.) Despite the costs, Pfizer would follow, and before long states had no official manufacturer to turn to for execution drugs.

There were occasional bouts of compliance with the drug companies’ wishes. Missouri dropped its propofol-based protocol after the company warned that, like with thiopental, compliance with European export controls in a lethal-injection-by-propofol would mean cutting off the entire nation’s propofol supply. Other states, however, met the demands of justice by simply lying to anyone and everyone they needed to. Louisiana told a hospital its purchase of hydromorphone was for “a medical patient.“ Ohio purchased drugs through its Department of Mental Health and Addiction Services, explicitly instructing its prison officials to “make sure you say we are the Department of Mental Health [and] do not mention anything about corrections in the phone call or what we use the drug for.” In 2017, drug distributor McKesson sued Arkansas after its corrections medical director purchased execution drugs under false pretenses—then demanding alternative execution drugs in exchange for returning the fraudulently obtained ones. All of these moves required expensive litigation, internal investigations, and policy changes.

Trump Has Aided, Rather than Challenged, States Flouting European Law

Donald Trump, perhaps the most pro-capital-punishment President in American history, has not only cheered on these developments but enlisted his administrations to assist them. In 2020, his Justice Department’s Office of Legal Counsel issued a stunning memo declaring that pharmaceutical products weren’t actually drugs if their intended use was an execution, allowing states to circumvent FDA scrutiny when importing them. The memo is medically nonsense and, according to Corinna Barrett Lain’s game-changing Secrets of the Killing State, legally unimpressive as well; nonetheless, it compelled the FDA to take a hands-off approach that the Biden administration never saw fit to reverse. It must not have been that convincing to Trump, either—on his first day back in office, he instructed the Justice Department to “take all necessary and lawful action to ensure that each state that allows capital punishment has a sufficient supply of drugs needed to carry out lethal injection.“ While the order doesn’t specify those actions, subsequent executive orders suggest that he might enlist pro bono help from capitulating private law firms—raising pharmaceutical companies’ litigation costs.

It’s difficult to say how much these requirements contribute to prices of the affected drugs. However, for a procedure that’s increasingly obvious has only symbolic value, and a President that’s committed to symbolic gestures above all else, it’s worth asking how much his heart is really in his rhetoric here.

1  Secrets of the Killing State gets only one citation here, but her work unwinding the Drug Supplier Saga was an invaluable guide. Buy it.