The Constitution in Your Medicine Cabinet

This is one insidious way in which the law penetrates your everyday life. Last week, the Supreme Court ruled unconstitutional a Vermont law that limited the access of pharmaceutical companies to data on which doctors prescribed which medications. The companies sought such information in order to target their marketing towards specific doctors, a multi-million dollar practice that presumably affects which medicines your doctor prescribes to you.

Why? What could the Constitution have to say about something so personal and private? Read the First Amendment, or, more precisely, read it the way that six justices read it. The Vermont law restricted a practice called "detailing" where drug companies buy prescription information showing them which doctors most prescribe which kinds of medicine. This information, gathered by data mining companies who pay the pharmacies for access to their records, could still be sold or otherwise made available to journalists and insurance companies, just not drug companies. So, argued Justice Anthony Kennedy, the law was in fact restricting the use of truthful information based upon the identity of the speaker (a drug company) and the contents of its speech (pharmaceutical records) and that, to Justices Kennedy, Sotomayor, Thomas, Alito, Scalia and Chief Justice John Roberts was enough to overturn the law. “If pharmaceutical marketing affects treatment decisions,” Kennedy wrote, “it does so because doctors find it persuasive. Absent circumstances far from those presented here, the fear that speech might persuade provides no lawful basis for quieting it.”

Yet is this really speech? Or is it economic regulation? If it is speech, is it commercial speech (which has a lower standard of protection) or private speech? If economic regulation, then should it not be dealt with by the legislatures and not the courts? These were the questions raised by Justice Stephen Breyer in the dissent.

“At best,” Breyer wrote, “the court opens a Pandora’s box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message.” Breyer read the majority opinion as a akin to Lochner v. New York, the landmark 1905 decision that overturned a New York labor law.“ At worst,” he went on, "[the majority opinion] reawakens Lochner’s pre-New Deal threat of substituting judicial for democratic decision-making where ordinary economic regulation is at issue.”

TB