In a blow to medical privacy and a victory for the direct marketing industry, the Supreme Court ruled that Vermont’s Prescription Confidentiality Law violates the rights of data miners under the Free Speech Clause of the First Amendment. The Court found issue with the law’s provision that absent prescriber consent, pharmacies and similar entities may not sell or otherwise provide prescriber-identifying information for marketing purposes; yet, the same information may be disseminated and used for other purposes, such as education or research. On the surface, the decision is a victory for drug manufacturers and data marketing firms that use doctors’ prescribing history to create more informed and targeted marketing efforts. Many feel the Court’s ruling calls into question the constitutionality of prescription privacy legislation pending in other states, such as Massachusetts, Maine and New Hampshire.
So does this ruling finally answer the question of what the Supreme Court holds more sacred: corporate First Amendment rights or individual privacy concerns? The Center for Democracy and Technology argues no, and that from the beginning the Justices questioned whether the Vermont law was ever intended to protect patient privacy, especially given the federal protections already in place. “The Supreme Court explicitly states that a statute imposing a more comprehensive privacy regime ‘would present quite a different case than the one presented here.’ The court explained that had the state restricted all disclosure except in ‘a few narrow and well-justified circumstances,’ then the court would have viewed the challenge through a quite difference lens.”