Resolution of Disapproval in Supreme Court Decision in Sorrell v. IMS Health Case

Lawmaker, author of health privacy protections in economic recovery act, declares privacy rights of doctors, patients should trump commercial interests

WASHINGTON, D.C. – On Friday July 8, 2011, Congressman Edward J. Markey (D-Mass.), co-chairman of the Congressional Bi-Partisan Privacy Caucus and senior member of the House Energy and Commerce Committee, introduced H.Res. 343, a resolution expressing disapproval of the recent Supreme Court decision in Sorrell v. IMS Health. In its decision, the Court struck down a Vermont state law that banned the sale of doctors’ drug prescriptions records if the records are used for commercial purposes without the doctors’ permission.

Rep. Markey’s resolution states that the Court erred in applying free speech protections to a Vermont law that lawfully regulated a purely commercial interest. Before the Vermont law was enacted, data-mining companies would purchase information about doctors’ prescription drug information from pharmacies and then resell the data to pharmaceutical companies. The pharmaceutical companies could use the information – without the doctors’ consent – for the commercial purpose of targeting their sales messages and marketing more expensive, brand-name drugs to physicians.

“In this case, the Supreme Court tipped the scales of justice in favor of big drug companies at the expense of patients and their doctors,” said Rep. Markey. “The privacy of the doctor-patient relationship should outweigh the ability of pharmaceutical companies to mine data simply so they can market expensive drugs to providers and reap huge profits. States should be able to regulate pharmaceutical companies in a way that protects the privacy of their residents and prevents pharmaceutical companies from having undue influence on doctors’ prescribing habits.”

Dissenting in the Supreme Court’s 6-3 decision, Justice Stephen Breyer wrote that the Vermont state law in question “adversely affects expression in one, and only one way. It deprives pharmaceutical and data-mining companies of data…that could help pharmaceutical companies create better sales messages.” The dissent, which was joined by Justices Ruth Bader Ginsburg and Elena Kagan, stated that the Vermont statute is a “lawful governmental effort to regulate a commercial enterprise…The far stricter, specially ‘heightened’ First Amendment standards that the majority would apply to this instance of commercial regulation are out of place here.”

Dr. Deborah Peel, a national health privacy expert and founder of the non-profit Patient Privacy Rights, praised the Markey resolution. “With a Supreme Court that stands up for the interests of pharmaceutical companies, it’s reassuring to know that Congressman Markey is looking out for patients and doctors who value the privacy of their prescription drug information.”

Text of the resolution can be found HERE.

Pro-Privacy Will Continue to Grow

More and more genuine consumer pro-privacy groups —as opposed to privacy-lite, industry-supported, faux consumer organizations—are speaking out to restore privacy in electronic health systems. Support for privacy rights will build and build. There may be set-backs, but we cannot be stopped. See this recent article on Consumer Watchdog supporting patient privacy.

The real reason privacy will win is simple and practical: electronic systems will never be trusted or work unless consumers control personal health information.

In the words of Justice Brandeis: “The right to be let alone is the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the [Constitution].” Justice Brandeis 1928.
Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572 (1928) (Brandeis J., dissenting).

Brandeis dissented from the conventional wisdom of his time. Today we are the dissenters from the CW of our time, but like Brandeis’ dissent, ours will prevail.