Free Speech vs. Medical Privacy Hits The Supreme Court

from the seems-like-a-stretch dept

I'm a big First Amendment advocate, but there are certainly times when people claim First Amendment rights that don't make much sense. Take, for example, the case that the Supreme Court recently decided to hear, Sorrell v. IMS Health, in which pharmaceutical companies are claiming a First Amendment right to use data from pharmacies to market to doctors.

The details involve a Vermont law that forbids data-mining companies and pharmaceutical firms from buying up prescription data, compiled by various pharmacies as required by law, to then go and market certain drugs directly to doctors. As you probably know, pharmaceutical firms spend billions every year trying to convince various doctors to prescribe their brand name drug, over the much cheaper generic equivalents (this "marketing" often involves ethically questionable practices). Thus, the data of what's being prescribed is really useful. The Vermont law said that this data couldn't be sold to data mining firms or drug companies without the doctors' consent. The 2nd Circuit appeals court said the law violated the First Amendment. Similar laws from neighboring New Hampshire and Maine had been upheld as Constitutional in the 1st Circuit, which is probably why the Supreme Court agreed to hear this case now -- to settle the split between the lower courts.

In this case, it seems like the 1st Circuit rulings make more sense. The key issue isn't even really the First Amendment rights of the companies to make use of this data, but that the data is available at all. The reason the marketing firms and pharmaceutical companies have access to that data at all is because the government requires the pharmacies to collect such data. Thus, it seems reasonable for governments to also then restrict how that data is used and/or sold in the interest of medical safety. It's not as if the data is public, and it's only being collected at the behest of the government. So it seems like a stretch to claim that this data, which is only available due to a government requirement, can't then include other restrictions.

Filed Under: first amendment, medical info, medical privacy, privacy
Companies: ims health, sorrell