Republican Senator Josh Hawley and Democratic Senator Elizabeth Warren have sponsored a new, radical antitrust bill that, if adopted, would forbid certain kinds of mergers in healthcare markets and force the break-up of large healthcare conglomerates across the United States. Senators Hawley and Warren have entitled their bill “The Break Up Big Medicine Act” (the “Bill”)

As I explain below, this Bill is unlikely ever to be enacted. But if the Bill were to defy the odds and become a new law, it would be immediately challenged in federal court on various grounds. Among other things, affected healthcare companies could argue that this law violates their right under the Fifth Amendment to receive just compensation for any property that the government takes from them in furtherance of a public policy deemed “necessary,” or, what is the same thing, any property that the government obliges them to sell to others at distressed prices so as to accomplish a public policy that the government deems sufficiently important to justify the taking.

If the federal courts were to reject these legal challenges and permit the new law to remain in place, it would quickly upend healthcare markets everywhere in the United States and lead to a swift, forced breakup of every dominant, vertically integrated healthcare firm in the country. The aftermath would be lively and eventful and would soon give rise to highly competitive regional and local healthcare markets across the land. Above all, these markets would likely offer patients more choices, lower prices, and improved healthcare. Doctors, nurses, and other clinicians would likely reclaim their historic role as the primary actors and decision-makers in the provision of healthcare to patients, and they would likely be paid much better for their work, which constitutes the true source of value in healthcare.

Any such law by itself would be insufficient. Antitrust law can and should require market participants to compete with one another rather than form dominant combinations that can dictate one-sided terms to their customers, suppliers, employees, and others. But our healthcare markets also require deregulation. Their besetting flaw is excessive, stifling regulation, which in turn gives rise to the top-heavy, bureaucratic administration of healthcare. Healthcare providers must devote unreasonable time and resources to comply with a myriad of federal and state regulations, whose Byzantine complexity rises to the level of the absurd and imposes indefensible burdens on the nation’s economy and healthcare systems.

Below I briefly explain what the Bill proposes to do, what are its chances of being enacted, and what would be its likely effect if it were enacted.

The Bill’s Sweeping Prohibitions and Compliance Requirements. Broadly speaking, the Bill would impose blanket prohibitions of certain kinds of vertical mergers and vertically integrated operators in the healthcare markets of the United States. It would also impose extraordinary  compliance requirements to ensure that the blanket prohibitions took effect swiftly.

Specifically, the Bill would forbid certain kinds of companies to own, acquire, or otherwise control a “healthcare provider” or a “managed services corporation” — i.e., any entity or natural person who provides healthcare directly to patients, as well as any professional manager of a healthcare provider.[1]A “healthcare provider” means any entity or individual that provides any kind of healthcare directly to patients. The term encompasses hospitals, inpatient clinics, outpatient clinics, … Continue reading

The companies subject to this prohibition would be none other than every company that owns or controls any of the following in the United States: a pharmacy-benefit manager; a healthcare insurer; or a wholesaler of pharmaceuticals or medical devices. For want of a better term, I refer to these companies as “healthcare operators.” They could no longer own or control healthcare providers or their professional managers.

The Bill would also require healthcare operators to disclose any existing holding that the Bill forbids and to divest themselves of all such holdings within one year.

The Bill would authorize civil enforcement of its provisions by the FTC, the DOJ’s Antitrust Division, the Department of Health and Human Services, state attorneys general, and affected private parties. A prevailing plaintiff in any such case could obtain from the offender a disgorgement of profits earned by the unlawful combination, a decree of divestiture, other injunctive relief, statutory penalties, attorney’s fees, and costs of suit. A private plaintiff, of course, would be required to prove its own antitrust injury, showing that its losses were caused by the anticompetitive consequences of the forbidden combination’s operations.

If this Bill were to take effect, it would be consequential—a game-changer. Its blanket prohibitions and forced divestitures would radically restructure and transform healthcare markets of all kinds and in every part of the country.

According to the Bill’s supporters, this Bill would introduce vigorous competition in the nation’s healthcare markets. In direct consequence, healthcare services everywhere in the country would become less expensive, yet improve in quality.

The Bill’s well-funded opponents embrace the opposite side of the question and would likely argue that (1) healthcare operators provide useful vertical integrations in the nation’s healthcare markets; and (2) these vertical integrations give rise to corresponding commercial efficiencies, which cannot be provided by a plethora of smaller, regional providers that are forbidden by law to integrate vertically with their suppliers or commercial customers.

The Bill Is Unlikely to Become a Binding Law. At first glance, the Bill would appear to have a significant advantage: it is truly bi-partisan, having been sponsored by a well-known, conservative populist (Senator Josh Hawley, R–MO) and an equally well-known, progressive populist (Senator Elizabeth Warren, D–MA).

But I doubt that the Bill can receive enough support in the Senate to clear a filibuster or even clear Senator Mike Lee’s subcommittee on antitrust law, which is typically the required path for antitrust legislation proposed in the Senate.[2]Senator Mike Lee (R–UT) is the Chairman of the Subcommittee on Competition Policy, Antitrust, and Consumer Rights, which reports to the Senate Judiciary Committee.

Nor do I know whether the Bill would be passed by the House or even clear its own antitrust subcommittee, whose chairman is Rep. Scott Fitzgerald (R-WI).[3]The formal name of this body is the House Subcommittee on the Administrative State, Regulatory Reform, and Antitrust. It reports to the House Committee on the Judiciary.

Even if the Bill were to clear subcommittee review and subsequently receive majority support in both chambers of Congress, it must have sufficient support in the Senate to withstand a filibuster. Only then could it be passed by the full Congress and sent to the President for his approval. But he would likely veto the proposed law, which could then be enacted despite his veto only if a two-thirds majority of each chamber of Congress voted within ten days to override the veto.

The Bill must therefore run a full gauntlet of hazards before it can be passed into law. At first glance, the obstacles seem insurmountable.

For all that, there is a wild-card factor: we find ourselves living in strange, unsettling times, and the Bill in its current form or after revision might well become popular with large segments of the US public before the midterm elections set for November of this year. That circumstance might prod members of Congress to enact the Bill after modifying it and perhaps even induce the President to sign it into law.

At the same time, healthcare operators would use their enormous resources to try to turn public opinion and members of Congress against the Bill’s provisions.

If the Bill were to become an enacted law, it would then face its most formidable challenge—withering judicial review. Such a law would be no sooner enacted, than challenged in court by affected healthcare operators, which would spare no expense to try to save their businesses from being dismantled. Among other things, they could argue that the law would accomplish an “unjust taking” in violation of the Constitution’s Fifth Amendment: it would do so by effectively taking their business assets without giving them just compensation for their loss.

While these judicial challenges made their way through the federal courts, the new law’s provisions would likely be enjoined until the issues in dispute were finally adjudicated. (Note, however, that a recent decision of the Supreme Court imposes narrow limits on the reach of a preliminary injunction issued by a federal district court).

In such a matter, the Supreme Court would likely have the last word. Its conservative majority, I believe, would likely be receptive to the arguments urged against the new law.

For all of these reasons, I conclude that the Bill has poor prospects. It is a long shot, if not doomed from the outset. Its likely fate will be the same as Senator Klubachar’s proposed antitrust reform of 2021, which she announced with great fanfare, and which was received with great acclaim by antitrust reformers. But that bill never even received a full vote in the Senate when it was controlled by Democrats, and therefore it was never passed by Congress and sent to President Biden for his all-but-certain approval.

By William Markham, © 2026.