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Tuesday, September 20, 2011

Worst Decisions, #9: Sorrell v. IMS Health

AFJ is counting down the 10 worst decisions of the Corporate Court's 2010-11 term. Yesterday, at #10, we talked about Schindler Elevator v. United States, which protects corporations who cheat American taxpayers.

Worst Decisions of the Corporate Court Term: #9: Sorrell v. IMS Health
Giving Corporations “Free Speech” Rights to Profit from Medical Records  

In the spirit of Citizens United, the Corporate Court again created expansive “free speech” rights for corporations at the expense of everyday Americans.  Data mining corporations use prescription information that doctors are required by law to collect to target those doctors with sales pitches about various drugs.  Vermont restricted pharmacies from selling such information without the individual doctor’s consent.  Research shows that such marketing affects doctors’ prescribing habits, which forces patients to buy expensive versions of medication over less expensive and equally effective alternatives.

Vermont argued that the pharmacies do not have an unfettered right to use the records as they wish, and noted that the Supreme Court has held that when the government compels production of otherwise private information, it may restrict further use of that information.  Indeed, limits on the use and disclosure of medical records are widely accepted speech restrictions.

In a 6-3 vote, the Corporate Court held that Vermont illegitimately burdened the corporations’ free speech rights and that the statute will have to survive strict scrutiny, a heightened standard that typically results in laws being overturned.

As Justice Breyer noted in his dissent, “[n]othing in Vermont’s statute undermines the ability of persons opposing the State’s policies to speak their mind or to pursue a different set of policy objectives through the democratic process.”  The statute only seeks to prevent corporations from using for marketing purposes information that doctors are required to collect about their prescriptions.  Nonetheless, the Court held that the corporations deserve the same heightened First Amendment protection to use private medical data to pad their profits that everyday Americans receive when voicing their opinions about public issues.       

Sorrell v. IMS Health is number nine on AFJ’s Worst Decisions of the Corporate Court Term because it grants corporations a First Amendment right to use private medical information against the wishes of doctors to market expensive drugs to those doctors.   

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